Do I really have to mediate?

Mediation has become a more familiar word in Dispute Resolution. In fact, it is now the case in England and Wales that as part of any formal Court proceedings, the Parties must consider Mediation and potentially face cost consequences irrespective of the outcome of the case if they have failed to do so. With the risk of costs, it is in all parties’ interests to have a clear understanding of Mediation as part of their dispute strategy.

So what is mediation?

An independent third party known as a Mediator facilitates discussions between those involved in the Dispute with the objective of its resolution.  The process itself is confidential, non-judgemental and the parties are free to leave at any time.

Why should I mediate?

Mediation has become increasingly popular because it offers the ability to save time and money by reaching an early Commercial Settlement, whilst preserving confidentiality for the Parties involved. The significant reduction in time spent by those involved can often be a hidden cost of Litigation. Having the ability to resolve a Dispute on flexible terms that a Court could not order can often be in both Parties’ interests.

Further, if the Dispute were to proceed to trial and one of the Parties, regardless of the outcome, had refused to Mediate then that Party will be at risk of facing a cost sanction from the trial Judge.

It is quite often the case that the Court will in fact place the Legal Proceedings on hold until after Mediation has been explored with the Judge actively encouraging all concerned to use this alternative means of Dispute Resolution to find a solution.

From the Court’s point of view, there are now very few Disputes that are not suitable for Mediation.

Is mediation a sign of weakness?

No. The Courts will not look kindly upon any party that fails to Mediate and as a result the Proposal and Agreement to Mediation is seen in this context. It is also a very sensible option for those seeking to agree Commercial Terms beyond the limited Court order.

The Mediation process itself is also confidential and takes place on a without prejudice basis. Not only does this mean that what is said at Mediation cannot be reported in Court, private sessions with the Mediator exploring the pros and cons of a particular argument are also confidential and not disclosed to the other party without specific consent.

How do we choose a mediator?

The Mediator does not make any decision in relation to the Dispute. The Mediator does however control the process and therefore it can be helpful to have someone with relevant experience although this is not essential.

A Mediator will not assess the rights and wrongs of a case and instead focuses solely on facilitating the Parties in reaching a resolution.

How does mediation work?

The process itself is very flexible and will depend upon the circumstances and the Mediator’s style.

In summary though, the Parties agree a Mediator, a date and the location for the Mediation. There will usually be a room per party and a room in which all parties can meet together.

Mediations often start with each party setting out to the other in a roundtable meeting their main arguments. A Mediator may facilitate discussion at this point or then invite the Parties to settle into their private rooms in order to explore their positions further.

It is important that those who were able to make the decisions on the case are present and Lawyers can also attend. When the Parties are in their own private room, this stage in the Mediation process can be called a Caucus. A Mediator works between the two rooms assisting each Party in considering the risks and costs as well as the pros and strengths of their claim. At this stage there is no set structure and the Mediator may invite Individuals to meet together to discuss aspects of the Dispute and to clarify facts or may simply continue working between the Parties in their separate rooms.

If an Agreement is reached, a Settlement Agreement is drafted and signed by the Parties before they leave.

Mediation condenses what is a very long Litigation process. It is however a Commercial Process which enables the Parties to explore many different aspects of the Dispute, which would not be considered if the matter where to go to Court. As a result, it can be a long day and requires the Parties to remain open-minded throughout as well as prepared to commit their time and energy to finding a solution.

What happens if no agreement is reached?

Discussions between the Parties can continue after the Mediation ends and often it is found that if an Agreement cannot be reached on the day, the issues that have been explored enable the Parties to conclude their Dispute within a matter of weeks after their Mediation. Both Parties will have protected their position on costs by being willing to explore Mediation and may also have learned valuable information about their case and indeed the other side that could assist them in finding the best possible Settlement.

What will mediation cost?

The cost of a Mediation can often depend upon the value of the Dispute, the fees of the Mediator and also the cost of any venue. The costs are split equally between the Parties.

Whether you believe you have a strong or weak case, Mediation can be a very useful means of resolving a Dispute quickly and cost effectively.  Even with a successful case, the costs of Litigation are rarely recoverable in full and limiting this exposure can be beneficial financially, as well as reducing the input of time for all concerned.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk