Mediation
Mediation is a confidential process whereby parties to a dispute invite a neutral individual to facilitate negotiations between them with a view to achieving a resolution of the dispute. Mediation is becoming a popular form of ADR. It is a voluntary process that is intended to help the parties to reach a binding agreement more effectively than by direct negotiation or by litigation and without the costs, delays and disruption of traditional litigation. Mediation cannot guarantee a settlement although does have a high level of success.
Mediation Providers are Listed here for ease of reference
| UK Register of Mediators c/o UK Mediation 8 Green Lane, Belper Derbyshire, DE56 1BY |
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| Telephone. 01773 822 222 | |
The courts now actively encourage mediation as a first step to resolve a dispute. If your private negotiations lead to a conclusion with which you are happy then you do not need to mediate. However, negotiations can sometimes end in deadlock which mediation is intended to avoid.
Why should mediation work where negotiation has failed?
Negotiation tends to be confrontational with each party perceiving themselves to be opponents and each wants to “win”. A mediator will try to shift the dynamics of the negotiations away from rigid positional bargaining towards principled negotiation where the parties view each other as collaborators in a problem solving exercise to achieve a meeting of minds, where there is a compromised ‘win-win’ agreement.
Mediation prevents the parties “eyeball to eyeball” positioning across a table, avoiding or reducing the tension and frustration which may have accumulated over many months of the dispute.
All discussions with the mediator are private. The parties can share confidences with him/her and reveal their true objective. The mediator achieves a unique overview of the dispute and can help identify ways by reframing positions to allow the parties to achieve their objective. Through questioning techniques and by suggesting options for consideration, the mediator can gradually help the parties to devise an agreement that will resolve the dispute.
Surely agreeing to mediate is a sign of weakness?
Agreeing to mediate is neither a sign of weakness nor of strength. All that you are doing is attempting to talk about the dispute and see if a resolution to the dispute that satisfies each parties respective needs.
The mediation process is conducted on a “without prejudice” basis. If anyone is unhappy with the way it is going they stop the process without being penalised. Nothing has to be revealed to the other side unless you want it to be. If mediation fails then you can turn/return to litigation and/or arbitration if possible. The preparations that you and or your professional advisers have done for the mediation will still be useful, although what happens during the mediation cannot be used in any subsequent court proceedings should the mediation not result in a settlement.
I have heard that mediation is non-binding so what is the point of it?
This is a common misconception. Mediation is non-binding in the sense that entering into the process is voluntary, it involves no commitment to settle and the mediator has no power to impose a solution. However, when a mediated agreement is reached, it is normal for the mediator to set down the terms of the agreement in writing. The parties then sign the written agreement with the intention that it becomes a legally binding contract.
Do I need a professional adviser?
You can represent yourself, although the experience of the organisations providing mediation services is that most parties do employ a professional adviser, for example an expert and or a solicitor or barrister.
What cases are suitable for mediation?
Any dispute is suitable for mediation provided the parties to it are willing to try. Some cases are more suitable than others. Experience shows that multi-party disputes are particularly suitable for mediation, perhaps because they are often more complex and the cost of sorting them out through more traditional techniques is extremely high. The process is also especially well-suited to a dispute between parties that have a long-term relationship that they wish to protect.
Does mediation work and if so why?
It works because, unlike traditional methods, mediation provides an opportunity for the parties to work together constructively towards a settlement. It also offers the chance to bring into discussion elements quite outside the original dispute that can frequently lead to a resolution where both parties gain from the agreement. The result is that, unlike litigation, business and professional relationships are preserved or even strengthened. A further attractive feature of the procedure is that mediation can be conducted on a confidential basis, away from the glare of publicity.
When to mediate?
Mediation can be used at any time although the earlier it is used the more cost effective it becomes subject to everyone having sufficient information about the arrangements. Standard directions in many Courts now have a mediation clause if the parties agree to use it and CPR Rule 26.4 allows the Court either on its own initiative or at the request of both parties to schedule a break in the litigation for mediation purposes.
How to mediate
You can write to or telephone an organisation offering mediation or you can appoint one directly. You will need to provide a short summary of the dispute and details of who is involved. You will be asked to prepare a brief written statement setting out the facts annexing any important documents. You will be asked to sign a mediation agreement confirming that everything in the mediation is and will remain confidential.
Initiating Mediation
Step 1 – Agreement to Mediate
If the parties have already agreed to mediate they will need to agree the appointment of a mediator details of some organisations that provide mediation are listed at the end of this narrative.
The parties should advise the selected organisation in writing providing a statement to this effect including a name and address details of the parties involved and any professional advisers. A brief summary of the nature of the dispute should also be included. The organisation will provide, at no cost, CVs of mediators. Mediators are chosen by the parties and not by any other means unless agreed. For example the parties may agree that the President of the Faculty if Party Wall Surveyors makes an appointment on behalf of the parties.
Step 2 – Preparing for Mediation
Following the appointment of a mediators, he/she will liaise with the parties to arrange an appropriate date and location for the mediation and co-ordinate an exchange of case summaries between the parties and the mediator if he/she considers this appropriate.
The mediator will forward or bring an appropriate mediation agreement to the first mediation meeting for signature by the parties. The fees and costs of the mediation will be agreed between the mediator and the parties, and must usually be paid before the mediation starts. A more informal procedure can be adopted in urgent cases or for preliminary meetings.
Step 3 – The Mediation Process
One of the strengths of mediation is its ability to adapt to the circumstances of the parties and the dispute. Mediation can be based on joint or separate meetings of parties and mediator; technical experts engaged by the parties can, for example, play a part. The stages below describe a typical commercial mediation, often only requiring one day.
The mediator will explain the procedure to be adopted at the first meeting with the parties. In most cases, mediation begins with an initial joint session with the parties during which each presents a summary to the mediator of the case and how they see it. The mediator is often assisted by an assistant mediator who will also have received formal mediator training (see below).
After a period of questioning and some discussion chaired by the mediator, the mediator will meet each party privately to explore the case in confidence. Several sessions of this kind may take place to allow the mediator to be fully briefed on the background to the case and each parties views and interests. This will permit frank discussions to take place on possible options available to resolve the dispute. The mediator will explore these options and any settlement offers to be made, with each party, but will not disclose any information given in confidence without the relevant parties agreement.
If agreement is reached, terms of the settlement are drafted with the assistance of the mediator. When finalised, these terms are normally signed by the parties with the intention of forming a legally binding contract. If the mediator or any party comes to the view that agreement cannot be achieved, then the mediation will be ended or postponed to a future meeting.
Step 4 – Follow Up
The mediator will invoice the parties for any additional costs and expenses incurred.
For an informal discussion, please contact Philip Antino on 01245 492495, submit our online form or alternatively email him on phil@apaproperty.com.
