Mediation: What it is and how it works

When disputes arise, the traditional route often involves going to Court. However, there are alternative approaches available for dispute resolution and the most common form is mediation. Mediation is a flexible, voluntary and confidential process where a neutral third party, known as a mediator, helps parties reach a resolution.

Mediation is generally not forced upon parties; it is a consensual process that can be initiated by the parties or prompted by a Court. Unlike a judge or arbitrator, a mediator does not make decisions but instead facilitates discussions between the parties, who have the freedom to settle or walk away.

Typically, the mediator does not determine who is right or wrong, or tell the parties how to deal with their differences. Instead, they use their expertise to help the parties foster communication and find common ground.

The mediation process normally involves confidential discussions and documentation that cannot be used in later legal proceedings if an agreement cannot be reached at the mediation. This allows the parties to be frank without fear that their actions may have repercussions down the line.

Mediation can happen at any stage of a dispute – including before or during Court proceedings (if appropriate). Generally, it is a process that the parties will want to consider at a relatively early stage because a major factor in settling any dispute is the ability to save time and costs on all sides. If Court proceedings are initiated, the Court will actively encourage the parties to consider mediation and other forms of alternative despite resolution (ADR), especially at the case management stage of the claim. This is often when mediation takes place if a claim has been started.

It is important for the parties to be present at the mediation, along with their legal representatives. In the case of a party that is a company or association, its representative must have authority to reach a binding settlement at the mediation.

Mediation can take many different forms and there is no set structure or “rules” governing how it takes place. The mediator’s role is pivotal in guiding the process, but the parties can play a significant role in deciding how the process works.

The identity of the mediator can either be agreed or the parties can seek assistance from a third party in choosing one (for example, the RICS Dispute Resolution Service will nominate a mediator if requested). The mediator ensures fair procedures and encourages communication. Importantly, a mediator remains impartial and typically:

  • Refrains from offering advice;
  • Acts as a conduit between parties to encourage effective negotiation;
  • Asks tough questions and challenges the parties to ensure their arguments and positions are solid;
  • Will not force or pressure the parties into agreeing if they’re not comfortable with the settlement but instead aim to create a challenging but fair environment for discussion;
  • Does not have the authority to impose any binding decision on the parties; and
  • Keeps all information relating to the mediation confidential.

The mediator ultimately acts as a guide, helping the parties reach an agreement. They play a vital role in ensuring that the mediation runs smoothly, and everyone has a fair chance to express their side of the case.

Deciding who pays for the mediation is a point the parties work out between themselves. Commonly parties agree to share the mediator’s fees and other expenses like travel, venue hire, food etc. In almost all cases, each party is responsible for their own legal expenses covering the preparation, participation, and representation at the mediation (i.e. having a lawyer present).

Traditionally mediations take place in-person. However, it is increasingly common these days for mediation to take place virtually. Both options have their merits and drawbacks, and it is important to consider in each case which option fits the parties and the case best.

As outlined above, there are no set rules for mediation. The information provided below is based on our experience and a “typical” process.

Parties normally prepare short case summaries exchanged with the mediator and the other party in advance of the mediation. This is designed to help the mediator understand that parties’ position and to allow each party to explain what is important to them in the dispute. The mediator may have preliminary discussions with lawyers to streamline the process.

When the parties arrive at the mediation, the mediator guides each group to separate private rooms (unless it is a remote mediation in which case virtual break out rooms will be created). The mediation typically starts with a joint session where the parties and their lawyers come together. In this session, the mediator will explain how the process will work, their role, and the overall procedure. Sometimes the parties will then get an opportunity to speak and share their perspective or negotiating position. Sometimes a joint session may not be held, especially if the relationship between the parties is strained or the mediator feels that it may aggravate the dispute.

Usually following the joint session each party will then return to their respective rooms (be they physical or virtual) and the mediator will move between each room throughout the day, having a private discussion with each party to assist with the negotiation process, relaying each of the parties’ views and any offers to settle. Principally, the mediator aims to understand each party’s position, discuss their settlement goals and actual needs, uncover hidden agendas, assess the consequences of not settling, and guide the parties towards a constructive negotiation.

The goal in mediation is to reach a binding agreement which can be recorded and signed by the parties on the day. However, even if that is not possible, mediation will often have been beneficial in allowing the parties to understand their respective positions and settlement can often result in the weeks after mediation, if it does not happen on the day. Even if mediation fails, you are likely to have learned a lot from the process, including those issues that your opposing party believes are important or what the perceived weaknesses in your case may be.

To summarise, mediations offer numerous advantages such as flexibility, enabling them to occur at any convenient time and avoiding the delays associated with court proceedings. Additionally, participating in mediation can help those involved steer clear of unwanted publicity, unlike in court proceedings.

Parties can discuss and agree issues at mediation that they would not otherwise be able to deal with in Court. Usually in a Court case, the Court will have a specific jurisdiction to deal with issues that arise. However, in a mediation, the parties can address the issues they consider important, which allows them to be creative in finding ways to settle a dispute.

Mediation has an extremely high success rate. The Centre of Effective Dispute Resolution (CEDR) 2023 survey reported an overall settlement rate of 92% when using mediation. This success rate is partly because if the parties agree to participate, they are usually at a point where they each want the dispute to end.

TWM has a specialist Dispute Resolution team who are highly experienced in all forms of dispute resolution, including mediation. We always have our clients’ objectives in mind, and in every dispute resolution case, we seek to negotiate or handle conflicts in a way which minimises time, cost and stress to our clients. We offer pragmatic solutions as well as advising on the technical elements of the law.

To discuss your requirements, please contact our Dispute Resolution team today for an initial no-obligation consultation.

By Grace Makungu, Trainee Solicitor

By Grace Makungu, Trainee Solicitor

When disputes arise, the traditional route often involves going to Court. However, there are alternative approaches available for dispute resolution and the most common form is mediation.

Mediation: What it is and how it works

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