What You Need To Know About Mediation
Important Information So You Can Make An Intelligent And Informed Decision To Resolve Your Dispute Quickly And Efficiently…
Mediation is the most flexible, speedy and cost effective way to resolve almost any form of dispute.
It can deliver results very quickly and those results can be much more inventive, useful and attractive to the parties than any verdicts or legal edicts that a Court might deliver.
Compared to Court proceedings, a typical commercial mediation usually only lasts a single day. Every mediation is completely confidential and when compared to any form of litigation, is truly inexpensive.
In another contrast to litigation, around 90% of participants in a mediation will report satisfaction and success. When they go to Court a majority of litigants find the process frightening, frustrating and very, very expensive to produce a very compromised and unsatisfactory outcome in which they have had little or no active participation.
In mediation it is the parties themselves that control the outcome. To begin with they actively choose to be there, and they agree to participate constructively in the discussions that lead towards a resolution. During the mediation the parties have the important opportunity to put across their point of view and get to the heart of what the dispute means to them. As a resolution emerges, it is their personal choice whether they agree to come to the settlement they’ve helped to negotiate and if they agree to do so, it will be on the terms that they themselves have decided will be satisfactory.
That’s why mediation delivers. At GetMediation more than 90% of our commercial mediations will settle with success. When they do, those settlements, facilitated by our experienced and skilled mediators, will provide solutions and terms that those parties have chosen themselves – in other words an Agreed Settlement. As well as being self-evidently a better outcome than something imposed by the Court, those agreements can be inventive and flexible and take account of commercial and personal interests that a Court wouldn’t consider when simply looking at legal rights.
What do Mediators do?
A Mediator is a neutral person who facilitates discussions, negotiations and agreed outcomes. The Mediator will remain neutral at all times – in other words they never take sides and they never direct the parties, or tell them what to do. The Mediator will make sure each party remains in personal control of outcomes as they emerge.
Mediation is so successful because:
- The mediation day brings all the important people together in the same venue at the same time, and the Mediator uses their skill to facilitate focus and concentration to tease out a resolution that works for both parties that can satisfy them both.
- The mediation is completely confidential. That means that the Mediator can have the complete confidence of each of the parties so that they can talk freely and get to the crux of what they truly hope to achieve on where their own best interests personally, emotionally and commercially lie. The Mediator will provide a comfortable and relaxed atmosphere in which each party knows that they can share all their honest thoughts and wishes because they know the Mediator will absolutely not pass that information to the other side – unless they specifically tell him to disclose some particular matter.
- The Mediator has experience and skill that will help each of the parties think of their issues with fresh perspective. This tends to generate novel ideas from which agreeable resolutions can flow because they’re able to deal with issues in ways that the parties wouldn’t otherwise have considered.
- The mediation gives each party their “day in Court” with a chance to have their say and to be heard but without the aggressive and frightening situations that arise in an actual Court. The atmosphere in a mediation is completely different and takes a lot of animosity, anger and anxiety out of the equation which helps both parties to adopt a more constructive frame of mind.
- As well as giving the parties the space to think and the ability to clear the air and get things off their chest, the mediation provides a focussed delineated space and time in which to conclude an agreement. On the day, the Mediator will often contrast the fact that each party has the golden chance to leave the building that afternoon free of the burdens of stress and financial hardship and get on with their lives with the very unpalatable alternative. When juxtaposed with the agony and expense of protracted litigation over the coming months, it’s easy to see why mediation helps the parties to come to a common sense and agreeable settlement.
What happens on the day of Mediation?
Generally the mediation day is just that – a single day on which the parties and the Mediator work hard to establish the terms of an agreement that both parties can live with in order to resolve their dispute there and then.
It generally looks like this (although as the Mediator will stress, the point of the process is that there are no strict rules except that s/he is neutral and that they will do everything in their power to help the parties come to a successful outcome):
- The mediation day will generally be scheduled from 10am to 5pm. There will be a break – for lunch.
- The first thing the Mediator will do is make each of the parties and their advisers aware of the framework for the day, what their role is (stressing that they are a neutral facilitator and not an adviser), and a few bits of housekeeping. They will gain the assent of each party to abide by the framework and principles as well as a commitment to work hard and engage constructively with the process.
- It will be up to the parties whether the mediation begins with these preliminaries in a shared meeting where all parties sit in the same room, or whether each party prefers not to engage face to face. Many parties prefer the latter, and the Mediator will exert no pressure for either party to confront the other at any point.
- Generally the mediation will proceed using 3 rooms – one for the Mediator personally, and one each for the parties and their advisers. Unless the parties agree, the Mediator will see each of them in turn for a period of around 30 minutes at a time privately and confidentially in their own discreet room.
- These private meetings will form the substantial part of the mediation process and the Mediator will go between rooms as discussions proceed.
- In these private sessions the Mediator will help each of the parties explore what an objectively fair settlement could look like taking all circumstances and considerations into account.
- As the process unfolds, a picture emerges and the Mediator will share particular agreed portions of the discussions from one party with the other. Everything else that is said will remain confidential, however the Mediator’s knowledge and skill lies in helping to steer discussions in a way that brings the parties towards a settlement that most closely aligns with the parties’ own self-interest and requirements.
- It is normal sometime in the afternoon sessions for a settlement to emerge. This happens in around 90% of mediation cases. The Mediator will help the parties to formulate exactly what that settlement looks like to them, and to summarise the outcome which will then be shared with both parties. When both parties agree, they will sign that summary and their legal advisers will collaborate to produce a legal settlement agreement with the aim of terminating any litigation.
- At this point in 90% of cases both parties feel a tremendous sense of relief and are able to leave the building with a lightness of step they may not have felt for years.
Do I need a Solicitor to mediate?
The short answer is not strictly.
However, while your Mediator will discuss your case with the knowledge of a legal expert, they are not allowed to give you any legal advice. In fact they will be at pains to the point of repetition if necessary that they are there to act as a completely neutral facilitator acting without bias and in complete confidentiality.
It’s completely normal that when parties come to a mediation their dispute is already with solicitors. In fact in the majority of cases, litigation will have begun and so solicitors will almost always be there to advise their respective parties in those situations.
It’s a good rule of thumb in all legal disputes for a party to “seek independent legal advice” – so it follows that it may be a good idea for each party to take advice from their solicitor to be able to make those informed decisions.
In fact it is often of assistance to the Mediator, should that be the case, since they can use the solicitors to help give each party an idea of the expense and unpleasant and distressing consequences should matters continue to Court.
Since the Mediator can’t give legal advice, it follows that they can’t draw up your settlement agreement, and so most parties are keen for their solicitor to deal with drafting such a binding agreement since it will be a legally enforceable Court order.
The above is a guide to “Mediation” as a concept and as it generally unfolds in civil and commercial cases. In cases of workplace mediation or in family law cases, there will be certain specific aspects that are distinctive and are not precisely dealt with in the foregoing explanations.
To make it easier to cover these particular aspects, you can find the information pertaining to each of these specialised mediation categories here: