What is mediation?


 

Mediation is an alternative to court where an independent mediator helps disputants reach a mutually agreeable settlement


Mediation is a way to settle a disagreement that avoids the cost, effort, stress and uncertainty of court action.  Importantly it's entirely voluntary so you remain in control of the settlement as the mediator guides you to a resolution.  Being voluntary, both parties must agree to mediate - sometimes additional steps are necessary to encourage all parties to participate - see "when you might use mediation" below for more details.

The mediation process is carefully designed to uncover settlements when other approaches might fail or result in unsatisfactory outcomes.  As a result, mediation is a very successful and growing part of our legal system.  The courts are strongly advocating the use of mediation to avoid going to court wherever feasible.  In addition, even if formal court action has begun the courts continue to promote mediation to avoid further court costs.

Your mediation will be tailored to your specific needs but a typical mediation might be completed in one day and run as follows:

Phase

Details

Preparation
Your mediator will gather the key facts and views of each party and prepare all participants for the mediation

Welcome
Your mediator will welcome and introduce everyone, outline what will happen over the course of the mediation and explain the ground rules.

Opening

All parties will be given the chance to explain the dispute from their point of view.  This will usually be in an initial joint (Plenary) session but this is not compulsory.  It is important that everyone has a chance to be heard and that no judgements are made at this point.

Exploration & Negotiation

The parties then settle in their own rooms where they can talk with the mediator in private (Caucuses).  Once they have sufficient information the mediator will begin to explore potential solutions; passing messages and offers between parties to move towards a settlement.

Settlement
Once an agreement is found that everyone is satisfied with, the mediator will document it.  Once it is signed it will become binding.  Until signed, any party may leave at any time - no party can be forced into a solution they're unhappy with.




     

Why use mediation?



Put simply, mediation works.  The Centre for Effective Dispute Resolution (CEDR) estimates that mediation succeeds in 89% of cases.  This means both parties have reached a settlement they have agreed to 89% of the time.  In comparison at least 50% of parties to court action will lose.  Even for those that get a decision in their favour, they often fail to achieve the outcome they wanted and may have incurred substantial costs, wasted time and damaged relationships.

Mediation is suitable for most instances of civil, commercial and workplace disputes and it has several important advantages over the alternative of court action (or litigation).

Cost


Cost

Mediation is much cheaper than court action.  The costs are known and fixed at the outset.

Control - settlement is only reached when both parties agree to it, facilitated by the mediator.


Control

Settlement is only reached when both parties agree to it, facilitated by the mediator.  Neither party can have an outcome imposed on them.

Confidentiality


Confidentiality

The existence of the mediation and its contents are confidential.  This preserves privacy, commercially sensitive information and full legal rights.

Time


Convenience

Mediation is usually resolved in one day and at a time agreed by both sides.  Court action can take months and is scheduled by the court.

     

When might you use mediation?




 
If you need help resolving a dispute or are considering legal action, the Civil Procedure Rules (the rules governing the process of civil claims and court action) firmly encourage you to consider mediation.  Mediation is strongly supported by the UK legal system because, in most cases, it is faster, cheaper, less stressful and more effective at resolving disputes than court action. 

Furthermore, failure to properly consider mediation or other forms of ADR (Alternative Dispute Resolution) to resolve conflicts before reaching court can incur financial penalties if the court determines that it would have been suitable: "If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered" (CPR, Pre-Action Protocol, Paragraph 11).

The Pre-Action Protocol also sets out "the steps the court would normally expect parties to take before commencing proceedings". These might be summarised as follows:  

StepDetails
1
The Claimant writes to the other party (the Defendant) to explain the basis of their claim and the resolution they are seeking.  This is often referred to as a "letter before claim" or "letter before action".  Both the Citizens Advice Bureau and Which? offer useful templates for a Letter Before Claim.  Amongst other points these include sections to confirm the Claimant "would be agreeable to mediation...to avoid the need for this matter to be resolved by the courts".

2
The Claimant allows reasonable time for the Defendant to respond (perhaps 14 days, depending on the complexity of the issue) stating if they accept the claim and, if not, their reasons for rejecting the claim.

3

If the dispute remains unresolved, all parties consider mediation (or another form of ADR).  As mediation is voluntary, both parties will need to agree to participate and remain open to finding a settlement agreeable to all parties. 

4

If the above steps are unsuccessful you might decide to proceed to litigation.  The guidance states clearly that "litigation should be a last resort".



We are happy to advise whether mediation is suitable to resolve your dispute - call us for a free, no obligation consultation.