10 Mediation FAQs

1. What is mediation?

Mediation is a form of alternative dispute resolution in which a neutral third party (the mediator) meets the parties in dispute to help them negotiate a settlement of their dispute. A large majority of disputes referred to mediation result in settlement. There are different types of mediation; the main one is facilitative mediation, in which the mediator's main role is to facilitate the negotiation between the parties without giving an opinion about the merits of the parties' respective cases. Another form of mediation is evaluative mediation in which the mediator will evaluate the strengths and weaknesses of a case but this is less common.

2. What is the role of the mediator and how is the mediator appointed?

The mediator is usually selected by joint agreement of the parties, although if they cannot agree or do not know who to elect the parties can ask a third person or independent body to select a suitable mediator.

The main role of the mediator is to facilitate an effective negotiation between the parties, with the parties retaining control over whether they agree to settle and if so on what terms. This involves the mediator taking charge of the process of the mediation which usually takes place over the course of one day of in-person meetings at an agreed venue. The mediator must be independent of the parties and impartial. He/she will not advise the parties who should retain lawyers if they require legal advice.  If the parties do not want to talk directly, the mediator will act as an intermediary to explain the parties' respective positions, to convey offers of settlement, etc. In private session with a party, the mediator may challenge the parties' cases and the positions they are taking but he/she should not put pressure on the parties to settle.

3. What are the advantages of mediation?

Mediation is a faster and less expensive process than litigation and arbitration. If mediation results in a settlement, the parties can avoid the legal costs of fighting a litigation or arbitration. Even if a settlement is not reached, the parties will sometimes narrow the issues in dispute through their discussions at the mediation which can stream-line the litigation/arbitration going forward.

Mediation puts the parties in control of their dispute, in contrast to litigation where the judge will decide upon what procedure to follow and will adjudicate on the claims.   In mediation, the parties select the mediator and can decide whether or not to compromise their claims. In terms of possible outcomes, mediation is much more flexible than litigation or arbitration, as the parties are free to agree upon matters beyond the scope of the dispute, e.g. they can agree a new long term contract if the mediation is successful in mending bridges in their relationship.

Mediation is a voluntary process but the English courts actively encourage parties to mediate. If parties refuse to mediate, they may be penalised by the courts when it comes to deciding which party should bear the legal costs of the litigation. Therefore, by agreeing to mediation, the parties can protect their position as regards the costs of pending English litigation.

Everything discussed at a mediation is "without prejudice", meaning it cannot be referred to and/or relied upon by a party in court or in arbitration. The discussions are also completely confidential. This means the parties are "freed up" to explore settlement opportunities without fear of what they say being used against them in future.

4. What are the disadvantages of mediation?

There are very few disadvantages to mediation, although sometimes it is not the right process if the parties want something specific:

For example, mediation does not typically allow for disclosure of documents (although this can be agreed between parties) which may be required by one or more parties. Also, a party with a very strong case may not want to have a mediation on the basis that the focus of mediation can be for a claim to be compromised in some way rather than met in full.

Of course, if a mediation does not result in a settlement (most mediations do), the mediation will be an extra cost for the parties to bear. This is however often counterbalanced by the parties gaining greater understanding about the dispute through the mediation process or even narrowing the issues in dispute which can streamline the case going forwards.

5. For which cases is mediation appropriate and how does mediation fit into litigation and arbitration?

Mediation can occur at any stage of a dispute - from before court or arbitral proceedings are issued through to after a judgment and pending an appeal. Most types of cases are suitable for mediation and it is advisable to attempt some form of dispute resolution as there can be costs consequences of not attempting dispute resolution if the case goes to court. However, there are some instances where mediation may not be appropriate, these are cases where:

• a point of law needs to be resolved;
• injunctive relief is required;
• there are allegations of fraud;
• there is need for a precedent; and
• there are policy and public interest issues.

6. What are the chances of a successful resolution?

Mediation has a very high success rate. CEDR has recorded that the aggregate settlement rate from mediations was 86% in 2016. This is 67% of disputes settling on the day of the mediation and 19% shortly afterwards.

7. What is the procedure in mediation?

Mediation is consensual in that it requires the consent of the parties. Even the courts cannot compel the parties to mediate although mediation is often strongly encouraged by judges. This consent can be in a pre-existing contract (in provisions dealing with dispute resolution) or via an agreement to mediate reached after a dispute has arisen.

The parties' first task is to agree upon and select a mediator.

The parties will enter into a mediation agreement with the mediator which sets out the rules for the mediation.

Before the mediation day, the parties will exchange a short case summary setting out their view of the dispute and what outcome they are seeking. At the mediation the procedure is very flexible. There will be a series of meetings at which the dispute will be discussed and the parties will, with the mediator, explore possible ways of resolving the dispute. Usually there will be a combination of joint meetings of the parties with the mediator in combination with private sessions between the mediator and each of the parties. Lawyers for the parties are usually present but it is possible for parties to attend without lawyers.

If the parties agree terms of settlement, the day will end with the parties signing a settlement agreement.

8. How much does mediation cost?

The costs of mediation comprise the mediator's fees and expenses. Typically these fees will be in the range of £5,000 to £15,000 depending on the case.  If an institution like CEDR is administering the mediation there will also be administrative fees to pay. The parties will usually bear these fees 50:50, with the possibility of the parties agreeing to vary this as part of a settlement deal.

The cost of mediation is therefore very modest compared with the costs of litigation or arbitration.

9. Are you bound by the results of mediation?

No, the parties are not bound by anything in the mediation unless and until they agree to a settlement and sign a settlement agreement.

10. What rules govern mediation?

Different institutions publish their own set of rules for mediation, such as CEDR, the ICC (International Chamber of Commerce) and the LCIA (London Court of International Arbitration). However mediation is a completely flexible process and the parties are free to agree their own rules.

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