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Seven questions about mediation

Now more than ever parties to a dispute are expected to attempt to settle their differences out of court, using one of a number of forms of alternative dispute resolution (ADR). Mediation is the most commonly used form of ADR, and one which can have considerable advantages over the court process.

1. What is mediation?

Mediation is a voluntary, flexible and confidential form of ADR. The process involves a neutral third party, the mediator, assisting the parties to a dispute to reach a negotiated settlement.

The confidentiality of the process encourages the parties to be frank and forthcoming with their settlement offers and views on the dispute generally, as anything said or written cannot be used in later proceedings.

2. What is the mediator's role?

Whereas a judge or arbitrator decides a case on its merits, the mediator will not make a determination in relation to the dispute or impose upon the parties the terms of any settlement.

Equally, the mediator is not an advisor to the parties. He will not inform them of their rights or advise on how to resolve the dispute. His role is to control the mediation procedure and encourage the parties to settle their dispute.

During the mediation he will listen to the parties, provide his/her insight and, by acting as a go-between, clarify points, relay authorised messages and find common ground. The mediator should encourage the parties to realistically appraise the merits of their case and focus their minds on exploring routes to settlement.

3. Who appoints the mediator?

The parties agree the appointment of the mediator. Who is suitable to mediate a particular dispute will depend on the nature of the dispute and who has the relevant expertise and experience in that field. Mediators are often lawyers, or have a legal background, and usually have prior experience of acting as a mediator.

4. What preparations are required before mediation?

The parties will need to agree:
  • The mediator's appointment.
  • The mediator's costs, and how they are to be shared.
  • The mediation venue and date.
Both parties will also need to:
  • Prepare a position statement which is a document summarising their position which is exchanged with the other party prior to the mediation; and
  • Consider who will attend the mediation on the party's behalf bearing in mind it is essential that at least one representative has the authority to settle the dispute on the day.
5. What are the benefits of mediation? Mediation:
  • is usually cheaper than litigating through the courts, and a lot less time-consuming;
  • is less confrontational than the court process;
  • is flexible: the parties agree the procedure and decide their own settlement terms;
  • can lead to a quick settlement;
  • can be resorted to at any time (including pre as well as post commencement of proceedings);
  • can preserve business relationships which may not survive the court process.
6. Is there an obligation to mediate?

The courts have emphasised that litigation should be a last resort. Parties are expected to continually explore (and confirm to the court that they have explored) methods for settling their dispute both before and after proceedings are issued. The court can penalise parties on costs should they unreasonably refuse to consider mediation or other forms of ADR.

Nevertheless, while the court will always encourage mediation in an appropriate case, the court cannot compel a party who does not want to, to participate in mediation.

7. What would the court consider to be a reasonable refusal to mediate?

The court will consider the overall effect of the successful party's refusal to mediate and their reasons for refusing before determining whether the refusal was reasonable. The courts have found the following to be acceptable grounds for a party to refuse mediation:

  • the case was unsuitable for mediation;
  • the successful party had made other attempts to settle;
  • the offer to mediate had been made too late or too early;
  • the costs of mediating would have been disproportionately high;
  • mediation would have had no reasonable prospect of success;
  • the mediation offer was not made in good faith, and was solely a delaying tactic;
  • it is unlikely that mediation would have resulted in as good a result for the successful party as judgment did.
If, however, the successful party is unable to show a good reason for their refusal to mediate then the court is likely to find their refusal unreasonable and to penalise that party in terms of costs.

For further information about this article, please contact Commercial Dispute Resolution Partners, Philip May or Chris Owen who are both qualified mediators.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2013. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.

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