What is mediation?
Mediation is one form of Alternative Dispute Resolution (“ADR”). That is, one way to settle a dispute that is an alternative to a trial in a court.
A mediation requires you and the other side to instruct a mediator, whose job it is to assist you both with settling the dispute. The mediator is a neutral third party who will try to find sufficient common ground between the parties to come to a settlement. The mediator does not and cannot force the parties to settle. The mediator is there to assist and facilitate an agreement, with the final decision ultimately lying with each party as to whether they do settle.
All the discussions which take place between the mediator and the parties are usually confidential and on a without prejudice basis. This means that anything that is written or discussed during this process cannot be used in proceedings if the mediation turns out to be unsuccessful.
Other forms of ADR most often undertaken are unfacilitated negotiations between the parties, either through correspondence or at meetings, and arbitration. Arbitration requires the parties to agree that they will be bound by the decision of the arbitrator. An arbitration is essentially a trial on terms agreed by the parties.
When should you consider using mediation?
One of the advantages of using mediation is that it can be used at any stage of a case. When mediation is instigated will largely depend on:
- The subject matter of the case;
- How much correspondence has passed between the parties;
- How much information and documentation has been exchanged between the parties;
- The events and behaviour of both parties to date;
- Other external variables can determine the timing of using mediation, for example, a clause set out in a contract.
If all the issues in dispute between the parties have been clearly defined, as well as the quantum, and all the relevant information and documents have been exchanged, then mediation can be commenced prior to proceedings being issued.
However, do not rush to go to mediation. You should not go to a mediation without a clear understanding of your position in a dispute; the value of it to you, the chances of success at trial and your bottom line.
You also increase the chances of mediation not being successful if it is held at a time when either of the parties are not ready, emotionally, to reach a compromise. Most mediations take place during court proceedings.
Why should you use mediation?
Mediation is a means of resolving a dispute without the need to go to court, or to continue an existing court action to trial. It saves you time and money, if successful.
You may be compelled to go to mediation, by a clause in a contract, or by the court’s costs rules. In the case of Halsey v Milton Keynes General NHS Trust  4 All ER 920 the court established the Halsey Principles about what conduct amounted to an unreasonable refusal to engage in mediation or other forms of ADR.
If you are found to have breached the Halsey Principles, you face tough costs sanctions from the court whether you win or lose the case.
Other factors to consider include:
- Mediations have a high success rate;
- Mediators are completely impartial and are there to assist you and the other side in coming to an agreement;
- Parties can choose which mediator they would like to instruct. In contrast, you don’t get to choose in front of which judge your case is to be heard;
- Mediation can be commenced at any stage of a case and at short notice. This can save time and money, allowing you to concentrate on your business and other aspects;
- Costs of the mediation are usually shared between the parties;
- This process offers more flexibility over the settlement options, as opposed to going to court or using arbitration;
- Cheaper than going to court to settle a dispute;
- Using mediation can be less stressful for some parties as it is not as informal as going to court; and
- Mediations are held in private, so all discussions and written information associated to the same are kept confidential. In contrast, if a case proceeds to trial then the public are able to attend and sit in the gallery.
There are, of course, disadvantages associated with using mediation, some of which are:
- You might end up having to go to court after all to resolve your dispute. Extra costs will unnecessarily have been incurred;
- If mediation is unsuccessful then there is a risk that parties will have revealed too much information or even their strategy on how they were going to fight to win their case in court;
- The other party may turn up to the mediation and be completely uncooperative, in which case the mediator can terminate the mediation. Costs and time would have been wasted.
Mediation can only happen with the agreement of the parties.
First, the parties must agree in principle that they will have a mediation. The identity of a mediator, acceptable to both sides, must also be agreed. After that, the more mundane matters of date and venue can be agreed. Usually, as mentioned above, it is agreed that costs are shared.
If you have a dispute that you are considering resolving through mediation, please call us.