What is mediation?
Mediation is an alternative to court where an independent mediator helps disputants reach a mutually agreeable settlement
Your mediator will gather the key facts and views of each party and prepare all participants for the mediation
Your mediator will welcome and introduce everyone, outline what will happen over the course of the mediation and explain the ground rules.
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.
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?
Mediation is much cheaper than court action. The costs are known and fixed at the outset.
When might you use mediation?
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".
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.
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.
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.