Mediation is a form of Alternative Dispute Resolution that can help parties to resolve their disputes out of Court. An independent third party, known as a mediator, is appointed by the parties to assist them in discussing settlement of their issues.
There are many reasons why you might want to consider mediation, including:-
- Mediation may enable the parties to avoid the cost and time of resolving matters through Court proceedings
- Mediation allows parties to explore more creative solutions than those which can be ordered by the Court; for example, an apology or a commercial agreement for future business
- Arrangements can be flexible; mediations can take place in person, virtually or by telephone
- Any discussions that take place during a mediation are confidential and “without prejudice” meaning that the parties can freely discuss the issues between them
- Mediation is firmly encouraged by the Courts and, in some instances, costs sanctions may be imposed for an unreasonable failure to agree to mediation. Mediation is also now mandatory for cases on the Small Claims Track which deals with cases for sums under £10,000.
So, what happens at a mediation? Whilst every case is different, an overview of the typical “in-person” mediation process is outlined below:
- Initial Arrangements – Once the parties have agreed to mediate, they will liaise over selecting a date and venue for the mediation, they will also agree upon the identity of the mediator and how the costs of the mediation are to be met.
- Preparation for Mediation – Parties usually each prepare a mediation statement in advance of the mediation setting out their respective positions and confirming who will attend the mediation. The parties will also agree a bundle of documents to be used at the mediation. The parties will agree and sign a mediation agreement (often provided by the mediator) which confirms the “rules” of the mediation including, importantly, that it will be entirely confidential and “without prejudice” and that the parties have the authority to agree a settlement at mediation.
- Joint Session – Typically a mediation will take place over the course of a day and the mediator’s role will be to facilitate settlement discussions between the parties. The day will usually start with a joint session attended by all parties and the mediator to introduce everyone and start the discussions.
- Private Discussions – After the joint session, each party will usually return to a private room and have separate discussions with the mediator. During these discussions, the mediator will attempt to understand each parties’ position and find common ground or to narrow the issues.
- Settlement Discussions – The rest of the day will, hopefully, be spent engaging in settlement discussions. Discussions are either held via the mediator or the parties can discuss matters directly with the mediator present. It is worth noting that sometimes settlement discussions continue beyond the mediation day and it is not uncommon for settlement to be reached in the days or weeks after the mediation as a result of the progress made during the mediation.
- Settlement – If a settlement is agreed, it will usually be recorded in a written Settlement Agreement signed by both parties. If Court proceedings are ongoing, it will also be necessary to inform the Court by filing a Consent Order.
It is worth noting that the Small Claims Mediation Service is a streamlined version of the mediation process outlined above involving a free one-hour telephone mediation appointment with a mediator provided by the Service.
If you would like to discuss your dispute and mediation further, please contact Liane Simmonds on 01403 224637 or email her on liane.simmonds@coolebevisllp.com
