How Mediation Works

Mediation is a voluntary and confidential process for resolving disputes in which an unbiased third person (the Mediator) helps people in dispute to find a mutually acceptable resolution without going to court.

Mediation is a non-adversarial procedure at which a neutral, trained professional assists the parties in reaching a settlement of a dispute or difference.

Mediation is quite simply a process of finding a solution that the parties can live with.

• Cost effective – can cost much less than litigation.

• Non-confrontational atmosphere - avoids the court room, which can be intimidating.

• More control – the disputing parties (and any advisers) ultimately decide how a case will be settled.

• Confidential – information revealed in a mediation session cannot be used in any court proceeding at a later date.

• Easy and quick to arrange - can be arranged quickly and at short notice (it is possible to arrange at 24 hours ‘notice).

• More focus on feelings and fairness – courts tend to concentrate on legal rights, wrongs and duties, whereas mediation acknowledges feelings and parties needs.

• Choice of mediator – the parties choose the mediator. You don’t get a choice of judge.

• Encourages and can provide for future cooperation between parties.

• Reduces the need for enforcement – a high level of compliance can be achieved because parties have chosen their own solution.

• Achieves a “win win” or as I like to say “shares some of the pain equally” situation - there are no losers because a solution is mutually agreed.

As with any method of settling disputes, there are always going to be advantages and disadvantages.

• The parties may be intransigent and not agree

• It could be another layer of cost if unsuccessful

• If an urgent injunction is required mediation may not be appropriate

The answer is almost anything.

Lord Justice Dyson, Master of the Rolls said at the Court of Appeal in May 2004:
“All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR”. (Alternative Dispute Resolution).

Dyson also stated that in all his experience he had never dealt with a case that he did not think could be resolved by mediation.

Mediation can resolve disputes between companies, families, communities, neighbours and employers and employees.

In August 2021, the Ministry of Justice started a consultation on the best ways of settling family, business, and other disputes without resorting to litigation. Robert Buckland, Lord Chancellor, said: “We want the public, families and businesses to be able to resolve disputes easily and with as little stress as possible – avoiding often lengthy and costly court battles”.

Justice minister Lord Wolfson added: “Too often the courts aren’t the best means for reaching such outcomes. That is why we want to improve the range of options available to people to resolve their issues, ensuring less adversarial routes are considered the norm rather than the alternative.”

Disputes frequently arise between employers and employees concerning:-

• Disciplinary proceedings and how they may be conducted

• Misconduct cases

• Discrimination – gender sex, race, or age

• Pay and benefits

• Working hours

• Bullying

• Whistleblowing

• Redundancy selection

Each mediator has a preferred method of dealing with mediation. Some mediators prefer to work with the parties keeping them separate throughout the process, only bringing them together at the end if agreement is reached. Others prefer to start with a joint meeting and then separate the parties and shuttle between them. Sometimes the parties do not initially wish to meet at the outset as feelings may be running high.

Generally, mediation will proceed as follows:

• A venue will be agreed between the parties. This could be at the offices of one of the parties in dispute, their lawyers’ offices or at a completely neutral venue such as a hotel or conference centre.

• The mediator will explain the process to the parties and set out the ground rules for the mediation. These will include:
  
  - The signing of a mediation agreement.
  - Explaining that the process is confidential and without prejudice.
  - Explaining that the process is voluntary and that the parties are free to leave at any time.

• The mediator will ask each party to give an opening statement, briefly setting out what they believe the dispute is about. The mediator will then suggest a series of confidential private meetings and will move between the meetings and, if appropriate, bring the parties together for a joint session.

• Everything the parties say to a mediator during the private meetings is confidential, although the mediator may seek permission of either party to release certain facts if they are likely to assist in the mediation process.

• The mediator conducts a series of private meetings with each party during which the claim, defence, arguments, and positions are discussed and analysed.

• The parties are free to discuss matters with their legal advisers at any time and are free to ask the mediator to vacate the room whilst they do so. The mediator is not a Judge and is not a legal adviser to any of the parties.

It is important that the parties present at the mediation have a commitment or authority to settle a dispute.

The mediator may have asked the parties to provide him/her with a short-written statement outlining how the dispute has arisen, their view of the dispute and the steps that have been taken in attempting to resolve it. This statement is sometimes known as a Position Statement.

To give the parties hope!

The mediator will encourage the parties to look forward not backwards.

The mediator will, in separate meetings, carry out “reality tests” to enable the parties to independently assess their positions.

The role of the mediator is to assist the parties to reach a solution, not to impose one.

Government research published in 2021 suggests that more than 70% of those using mediation services will resolve their issues outside of a courtroom. The research also found that only 3% of the two million civil proceedings issued went to trial in 2019, ‘showing the vast majority of claims can be resolved without the need for a judgment’.

There is one school of thought that maintains there is no such thing as an unsuccessful mediation. Even those that do not reach agreement on the day, may reach agreement weeks or months later, as the parties have the opportunity of hearing the other side, acknowledging feelings and this may prompt the parties to settle at a later date.

If agreement is reached, the parties will be required to draw up a mediation settlement agreement, which the parties or their lawyers (if any) can produce to the court in order to conclude proceedings.

A mediated agreement can result in a settlement which would not have formed any part of the core judgment, but ultimately would work for the parties. It may be that an agreement can create value and have other benefits: -

• The parties may continue trading with each other.

• If they are neighbours, they can continue living next door to each other safe in the knowledge a dispute has been resolved.

Mediation takes into account the parties’ respective personal, emotional business or commercial needs. Mediation, if successful, preserves a relationship that can leave both parties with a “win win” or an agreement in which they equally share a little of the pain.

It depends. Some mediations can last a few hours. Others can take a whole day. Much depends on the subject matter of the dispute and the number of parties involved.

Yes, mediations can take place virtually via Zoom or Microsoft Teams. In fact, they can even take place via the phone.

The important thing is to have a channel of communication.

Face-to-face is usually better but I know we live in challenging times.

It varies depending on how long the mediation takes.

Details of my charges are on the charges tab

Contact me. Let’s have a chat. I can provide you with a copy of my mediation CV. Then you can, if you wish me to act, propose to the other party that I am appointed. Both parties have to agree to the appointment of the mediator.

Remember, conflict is resolved one conversation at a time. Take the first step.