Mediation is a consensual process. The disputing parties agree to appoint a mediator and usually enter into a mediation agreement which sets out some basic rules governing the process.
The mediator is independent. He will listen to both sides of the dispute. The disputing parties are usually represented by solicitors but you do not have to attend with a solicitor. In the interests of fairness, it would be unusual to agree to one party having a solicitor present and the other being unrepresented.
The mediator will determine how the mediation proceeds. It is a relatively informal process but there has to be a protocol for the process to be effective. As this is an area which commonly generates interest, we have set out the procedure, in simplified form, below.
Either party can walk away at any time although the mediation agreement terms will usually require the party wanting to leave to give notice to the mediator so that he has an opportunity to persuade the party wanting to abandon the process to continue. He will generally only do this if, having heard both sides of the story, he considers that there is still a chance of settlement.
The process is ‘without prejudice’. This means that anything said at the mediation cannot be openly referred to in any court proceedings that already exist or may exist in the future.
The process is non-binding until such time as any agreed terms are incorporated into a settlement agreement. If the outcome is that a settlement is reached, that agreement is final and binding like any other contract.
Cost can vary depending on the size and complexity of the dispute and the seniority of the mediator. We can obtain quotes and help you keep the costs proportionate to the dispute. Mediation need not be expensive.
The mediation process explained
- The mediator meets and greets each of the parties in their rooms. The mediation venue will have at least three rooms: one for the mediator and one for each of the parties.
- All parties attend the mediator in his room and each is given the opportunity to say his piece in front of the other.
- The parties return to their rooms and the mediator will spend time with one of them alone. He will seek to understand what they see as their strengths and seek to get them to acknowledge their weaknesses.
- He will then do the same with the other party.
- He will shuttle between the rooms, moving from the issues (and each of the parties' strengths and weaknesses) to monetary offers that acknowledge the identified weaknesses.
- The gap is slowly closed and the parties, hopefully, meet somewhere between the extremes of their original positions.
- A binding compromise is agreed and formalised.