The Mediation Process Explained

A dispute has arisen.  Despite a detailed exchange of correspondence the parties cannot resolve their differences.  Perhaps court proceedings have been taken.  One party is then advised matters might be compromised through mediation rather than a decision of the court.  The individual is very reluctant to take part.  I suspect there are many conversations that take place between a client and lawyer in line with the following.

Why should I agree to mediate?

Because it is far quicker and cheaper than asking a judge to decide matters.

But an agreement reached at a mediation is not the same as a court order – my opponent might change his mind the next day.

If you do reach an agreement, and that is put into writing and signed by all, that will be legally enforceable.  So, there will be no opportunity for a change of heart – on your part too.

So, a mediator is like a judge?

Not at all. A mediator’s role is to encourage and facilitate discussions between the parties.  They do not impose a view on matters.  They act with complete neutrality and only assist the parties to resolve their differences.

Anyway, I am not going to be in the same room as my opponent.  He does not like nor respect me, frankly I feel the same about him.

You need not do so.  Although it can be very beneficial to have a joint opening meeting at a mediation, you decide whether that happens.  If it does not, the mediator will see you and your lawyer privately, as they will the other party.  Only if you agree will there be a joint meeting.  The private meetings will continue throughout the day until, hopefully, an agreement is reached.  There might then be a final joint meeting but, again, that will be up to you and your opponent.

I also do not trust my opponent.  He keeps raising new issues.

If he does mention anything new on the day, or earlier, there will be time for everything to be discussed and resolved during a mediation.  By comparison, if you are in court and new issues are raised, a judge may decide they cannot be dealt with and explain further proceedings will need to be taken.  You may agree that would be a waste of time and money.

Who decides the format of the day?

One of the great advantages of mediation is its flexibility.  You can trust the mediator to explain and guide you through a well-established process which both you and your opponent can alter as the day develops and as circumstamces suggest.  By comparison, by taking and pursuing proceedings you will be required to take certain steps – and at greater cost.

So, my role on the day is just to listen to the mediator?

No.  A mediation is an opportunity for all parties to be as fully involved as they may wish in the process, and in a positive way.  A mediator will want to understand why the differences arose, not just the differences themselves.  They will listen to what you have to say very carefully and patiently.  You will be asked questions and a mediator will test any proposals you may have for settling matters.  You may also be asked to consider what your opponent is saying.   Be prepared to compromise and have an open mind.

What does that mean?

You will begin the day having a basis for settlement in mind. At some stage a mediator may ask you what that is, or for your proposals generally.  They may suggest (as they will to your opponent) that you might usefully temper your ambitions to reach an agreement, not least because of information that might be disclosed by your opponent during the mediation.

Can I leave a mediation if I get fed up?

Yes, at any time in that mediation is a voluntary process.  However, it will be a good idea to speak to the mediator first.

Why?

One reason might be because the mediator may have been given some information that they feel may help in reaching a settlement.  If that information was imparted when the mediator was seeing your opponent in private, whilst they will not be able to tell you that without your opponent’s consent, the mediator may be able to indicate that the chances of settling are good if you remain.

I do not follow that.

Anything said to a mediator when they are seeing you alone will be treated confidentially.  This means that you can pretty much say what you like to a mediator in the knowledge your opponent will not know of it, unless you give the mediator permission to pass it on.  Sometimes mediators will ask for that permission.  Alternatively, you may ask the mediator to say something but they could seek your agreement to use their discretion when to pass the information on.  However, the decision is yours.  The mediator will act as you request.   But be completely open with them.  Mediation is also Without Prejudice.

Without Prejudice?

That means that whatever is said during a mediation cannot later be mentioned before a court.  This encourages full and frank discussions, invariably a very positive aspect. 

I believe I have a very good case so I am bound to win.  I do not need to mediate.

You could win, but the court process will probably take 18 months or so if not longer with all the stresses, strains, additional costs and uncertainties that will bring.

But if I win I will recover my costs in addition to succeeding in my claim.

You may recover some of your costs, but you will not recover all of them.  And even if you win, a judge can order that you should not recover certain parts of your costs if they think you have behaved unreasonably – for example, by refusing to mediate.  If you lose you will have to pay your own costs and, quite probably, some of your opponent’s.  That could total some tens of thousands of pounds – and you will not have succeeded.

How much will a mediator cost?

There is no set scale, and much will depend upon the amount of work undertaken by the mediator and the length of the mediation day. However, as a guide, a typical mediator’s fee might be in the region of £3,000 - £4,000 (excluding VAT if applicable).

Who pays?

A mediator’s fee is usually shared between the parties.

What happens if we run out of time?

You will not.  A mediation starts when the parties wish, and will end when an agreement is reached, or if the mediator (or parties) decide to call it a day.  Unlike a court, a mediator is not constrained by a need to finish by the end of the afternoon.  It is not unusual for mediations to continue into the evening, or later.  Even if no agreement is reached on the day, a mediation can continue another day.    And on a worst-case analysis, if no agreement is reached, a lot of information will have been both obtained and disclosed which of itself might enable an agreement to be reached later.

I still could not stomach losing at a mediation.

You will not in that there is often no winner nor loser.  The parties may agree something by which everyone retains their self-respect and often a relationship that might have been damaged can be restored.

OK, I’m persuaded.  What happens next?

And in an ideal scenario, the mediation day is fixed and an agreement reached.  Both parties are satisfied with the outcome, their relationship is renewed and they can put behind them a dispute that had dragged on for far too long.