Mediation

Our mediators are not all mediation barristers; some are drawn from other professions, who bring unparalleled levels of experience in a range of disciplines, including; education, international diplomacy and global business. Our members are experienced in a wide range of disputes including; commercial contracts, banking, pensions, regulatory and tax, construction disputes and personal injury. Several also have wide global experience from working on disputes in the Middle East and the United States.

Many disputes in the commercial world, in particular, are born out of misunderstandings and poorly drafted contracts – often caused by poor communication between contracting parties. Many problems of this sort can be avoided. Our mediators are available to work with clients from the start of projects, advising on both the drafting of dispute resolution clauses in contracts and also working alongside HR managers and operational directors to remedy problems as they arise, so as to prevent the onset of litigation.

We have a panel of mediators with substantial experience who are trained, accredited and able to assist disputing parties to:

• Identify issues they need to address
• Better understand and evaluate each other’s cases
• Identify possible ways forward
• Formulate potential solutions

Common reasons why mediation has gained in popularity are:

• Speed – A mediation can usually be arranged quickly, within days or weeks usually rather than months.
• Flexibility – Parties can agree solutions outside the powers of the courts.
• Costs – Will usually be considerably more cost-effective than litigation costs.
• Informality – The formalities of the court process can be intimidating and complex, and by comparison mediation is often more informal and straightforward.
• Restorative – Mediation has the capacity to preserve and even cement relationships that have been strained by the dispute.

Whilst the mediation process is relatively informal it can still be a daunting prospect to some individuals – the presence of an experienced counsel alongside you can be of invaluable assistance in reaching a settlement. Our barrister mediators are also experienced in representing parties at mediations and can be instructed directly by members of the public.

English courts and procedural rules often require parties that are in dispute and who are thinking about court action to consider using mediation to resolve their differences.

The mediator is chosen by the parties and works for, and with, them and their representatives. On occasions more than one mediator may be appointed, for example in complex multi-party disputes.

A mediator does not deliver a judgment or award, like a judge in a court of law or an arbitrator in an arbitration. A mediator does not decide issues of fact or law, but uses his or her skills and experience to guide the parties to a solution that satisfies both sides. If a settlement is reached, the terms that are agreed are written down, resulting in a legally enforceable contract between the parties.

Cost, speed and flexibility: mediations are usually quick to arrange and to conduct, and are less expensive than litigation or arbitration. The process does not commit either side – it takes place only if each party has agreed to join in and, at any time during a mediation, parties can leave and end their participation.

A successful mediation can save the parties time and legal fees. It can create an environment to help communication between parties and allow them to explore their interests and needs which improves the likelihood of continuing or developing the relationship. It can achieve a compromise and remedies or solutions which the courts would not have the power to agree. Even when a case does not settle at mediation, if it is carried out at the right time and in the right way, the process can help the parties to better understand the strengths and weaknesses of each other’s positions, and to narrow the issues dividing them, before committing to the costs and risks of a trial.

Confidentiality and privacy: mediations are confidential and “without prejudice”, which means that as far as the law permits, what is said by the parties or the mediator at a mediation cannot be revealed later in court or to third parties. Therefore parties to a mediation can avoid airing their dispute in public, unlike in court proceedings. And because mediation does not involve the cross-examination of witnesses as at trial, it spares the individuals concerned the stress and potential trauma of having to give evidence in court.

Mediations have a high rate of success. A recent survey of the mediation market showed that the overall settlement rate is around 86% (source: CEDR, “The Seventh Mediation Audit”, 2016). The proportion of cases that achieve settlement on the day of the mediation was found to be 67%, with another 19% settling afterwards, as a result of the mediation process.

Mediations have a high rate of success. A recent survey of the mediation market showed that the overall settlement rate is around 86% (source: CEDR, “The Seventh Mediation Audit”, 2016). The proportion of cases that achieve settlement on the day of the mediation was found to be 67%, with another 19% settling afterwards, as a result of the mediation process.

A mediation tends to be scheduled for one day, although it may continue for longer with the agreement of the parties. A mediator is appointed by the parties or, with the agreement of the parties, by an organisation providing mediation services. The parties usually sign a written mediation agreement which sets out the terms under which the mediation will operate.

The typical mediation process has several stages, as described below.

Stage 1: Preparation

Preparation is key to increasing the prospect of a successful outcome of the parties’ dispute. Before the day of the mediation, the chosen mediator is likely to have a conversation with each party or each party’s representative(s), to explain the process and to explain how to prepare for the mediation. Things to be considered include: the right people to attend the mediation; the evidence to present – as part of the party’s case – to the mediator and the other parties; and the preparation of a position statement explaining the key issues in the dispute, as the party sees them.

Stage 2: Initial meetings with opposing parties

At the beginning of the mediation day, the mediator will meet each party privately to discuss the process and what the party hopes and expects to achieve from the day. These meetings are confidential, although a party may ask the mediator to take a message or provide specific information to the other parties to consider.

Stage 3: Joint/plenary meeting

It is an essential part of most mediations that the parties meet together to tell each other, face to face, how they see the issues and what they want from the process. Such meetings are sometimes emotional, but it is usually best to get the issues out into the open. Doing this can be a catalyst for reaching a settlement, by helping the parties to start to see the dispute from each other’s perspectives.

Stage 4: Exploration

The next stage of a mediation is to explore the issues, usually in confidential private meetings between each party and the mediator, or sometimes in joint/plenary meetings (including between the parties’ experts, if any). Each party can work out the strength and weakness of its case on the various issues. During these meetings the mediator helps the parties to identify the factual and legal issues in the dispute, as well as the parties’ underlying interests and needs. The mediator may play the role of “devil’s advocate” or “reality tester” to help parties to understand their positions realistically. The mediator can also consider and suggest possible paths to settlement, in order to assist the parties.

Stage 5: Negotiation

This stage of the mediation process is probably the most demanding. It is often conducted in the form of a series of confidential private meetings between the mediator and the parties. The mediator acts as an intermediary or “shuttle diplomat”. If a party agrees, the mediator takes information, concessions, offers, counter-offers and rejections by that party to the other parties. The negotiation stage often involves several rounds of offers and counter-offers, with occasional blocks which the mediator can help the parties to try to overcome.

Stage 6: Settlement

If the parties reach agreement in principle on the terms of a settlement, those terms are then put in writing, usually by the parties’ representatives and sometimes with input by the mediator. If the parties sign a settlement agreement, it becomes binding on them as a contract and is enforceable in a court of law. This signals the end of the dispute. If no settlement is reached, the dispute may continue through some other dispute resolution process, such as negotiation, in which the mediator may continue to help with the agreement of the parties. If the dispute is not resolved, litigation may follow or continue.

Please contact Sam Carter in our Practice Management team for assistance.

Please contact Sam Carter in our Practice Management team for an estimation on costs.