WHAT IS MEDIATION?
Mediation is a process designed to help parties reach agreement and find a solution to their dispute.
Importantly it is usually quicker, less expensive and less time consuming for the participants than being involved in court proceedings.
A major benefit is that it gives the parties the chance to take control and reach agreement – they are not relying on a third party to decide the case for them.
It is a voluntary process and is without prejudice until the point that a binding agreement is reached. In other words the discussions at mediation cannot be used in the court proceedings if the case does not settle.
The Mediator does not decide who is right and who is wrong but works with the parties, often separately and in confidence, to try and reach settlement terms.
WHAT DOES IT COST?
Mediation appointments are generally either booked for a half or, more commonly, a full day. The fee charged will depend on the complexity and value of the case, and the preparation and attendance time needed.
I always agree a fixed cost up front with the parties for an agreed period, and the fee is usually split between the parties on a 50:50 basis. There will be an additional hourly rate chargeable if the mediation exceeds the allotted time.
I do not charge for travel time or accommodation or travel expenses. For mediations that I host at my offices, any refreshments provided will be charged at cost.
Please do not hesitate to contact me for details or a no obligation discussion.”
WHY DOES IT WORK?
There can be a wide range of factors that lead to the settlement of a dispute.
It is often not a question of who is in the right and who is in the wrong. Often both parties genuinely believe that they are in the right.
Mediation is a process by which each party can explain their point of view and to listen to that of the opponent.
It then enables each party to carry out a private analysis of the case, with the help of the Mediator, and to consider the risk and implications of proceeding with the dispute as against the benefit and finality of reaching agreement.
The exchange of information and consideration of these issues is a very important part of the process.
In addition, it is sometimes the case that parties will wish to try and preserve a business relationship even though they have encountered a dispute. Mediation tends to offer a much better chance of preserving a relationship than litigation.
WHAT ARE THE ADVANTAGES OF MEDIATION?
In short, it offers a way to resolve a dispute more quickly and often much more cost effectively than litigation.
Achieving a negotiated outcome also buys certainty and avoids the risk of going to court and losing and potentially paying the opponent’s costs as well as your own.
In my experience most businesses and individuals would prefer not to have to deal with disputes and would rather spend time and energy in getting on with positive things.
WHAT TYPE OF DISPUTE IS SUITABLE FOR MEDIATION?
The flippant answer is that pretty much any dispute is suitable.
An agreement reached at mediation can only be contractual however – that is a promise by one party to the other to do something. It is not possible to obtain any redress from mediation that requires an injunction or Court order compelling a party to do or not do something for example.
Clearly the value and / or importance of the dispute should be of such size that it justifies the cost and time involved.
AT WHAT STAGE SHOULD A DISPUTE BE MEDIATED?
Mediation can take place at any stage of a dispute.
Sometimes mediation takes place before court proceedings have been issued, and sometimes just before a final hearing is due to take place.
The key issue is that the parties know enough
about their own case to be able to explain it to their opponent, and analyse their risk.
The parties usually exchange a Position Statement and key documents, again in confidence, before the mediation to educate the other party and the mediator as to the issues in the dispute as they perceive them.
IS IT A SIGN OF WEAKNESS TO SUGGEST MEDIATION?
This was often a perception in the early days of mediation in the UK, but should not now be the case.
Mediation is now an accepted and mainstream form of dispute settlement.
Its use is now in fact actively encouraged by the Court rules that apply in civil litigation and senior members of the judiciary often encourage its use and benefit. Litigation is now considered to be a ‘last resort’ method of dispute resolution as opposed to the first port of call.
In the reported case of Egan v Motor Services (Bath) Limited,  EWCA 1002 Lord Justice Ward said of mediation:
“It is not a sign of weakness to suggest it. It is the hallmark of commonsense. Mediation is a perfectly proper adjunct to litigation. The skills are now well developed. The results are astonishingly good. Try it more often.”
If there is a reluctance to enter into mediation I would be happy to have a no-obligation discussion with the other party to discuss the benefits and possible way forward.
HOW LONG DOES A MEDIATION TAKE?
The mediation itself will usually be completed in a working day, or half day in some cases. Sometimes an approach of limiting the time for the mediation at the outset can focus minds, and sometimes things take longer.
The mediation can be set up quickly, to the convenience of the parties.
WHERE DOES THE MEDIATION TAKE PLACE?
Again, this is flexible.
I can arrange hosting at my offices in Cardiff (no cost, other than refreshments being charged at cost).
Otherwise the mediation can take place at the offices of one of the parties’ solicitors’ offices, one of the parties’ offices, or at conference facilities at a convenient location. I have even mediated cases in executive boxes at football grounds.
At least two private rooms, and preferably three, are needed on the day.
WHO SHOULD ATTEND?
The parties need to attend, together with their legal representative if they have appointed a lawyer.
The critical issue is that the party attending has authority to settle the dispute and is the decision maker.
In cases involving a company the person in actual attendance must have delegated authority to settle the case.
It is generally inadvisable to have to refer back to others not in attendance for authority, as they will not have attended the opening session or participated in the discussions at mediation.
I have also conducted mediations by Skype, with one party located overseas calling in to the mediation process.
SHOULD WE PROVIDE A POSITION STATEMENT?
It is always helpful to provide a Position Statement before the mediation to the mediator and the opponent. The document does not have to be particularly lengthy or as formal as court papers.
It is helpful to set out a summary of the main issues in the case as you see them. This can save a lot of time at mediation as sometimes parties are agreed that the key areas for discussion are on certain points and that other points, while they still may be ‘in play’ in the litigation, are not critical to
WHAT HAPPENS ON THE DAY?
There is no set format to be followed.
Typically, the normal course of events is that there is an ‘open’ session at the start of the day which both parties attend with their legal representatives. The mediator explains the process and allows the parties and / or their lawyers to make an opening statement (if they wish).
This is usually a good opportunity to make important points and help the opponent understand your view of the case. The golden rule is that each party listens to what the other has to say without interruption.
Even if the parties do not want to make substantive comments in this session a statement that they are there in good faith to work towards a resolution helps the process.
The parties then break out into their private room, and the mediator spends time with each party in private session. An extra layer of confidentiality then applies, with those discussions being kept confidential, unless it is agreed that a piece of information can be revealed to the other party.
During the day the parties will be invited to consider the terms on which they would be prepared to settle the dispute, and the mediator will help guide those discussions and negotiations.
If terms are agreed the parties will be required to set out the terms in writing and each party will sign. The agreement then becomes legally enforceable.
WHAT IF THE CASE DOES NOT SETTLE?
Sometimes the case does not settle on the day and parties want to reflect further on their position. In those circumstances it is quite common for the case to settle soon afterwards.
In cases that do not settle I always make follow up calls to the parties to see if there is an opportunity to keep dialogue going.
HOW DO I MAKE A BOOKING?
The first step is to contact me with your details and details of the other party, preferably with a range of available dates.
I can then contact you with details of my fee structure and agree a timetable for exchange of Position Statements and key documents.
I can then confirm the date with you and send out a Mediation Agreement to be signed by the parties.
Any queries – just contact me.