Some legal disputes could be settled outside of court, with an amicable agreement prior to a court date often holding vast benefits for all parties involved in a dispute. In these circumstances, mediation is a service that ensures a positive and timely agreement is made prior to a case going to court.
In this guide we will outline the key aspects of mediation and will look at the:
What Is Mediation And When Is It Useful?
Mediation is the process of settling a dispute before a case is heard in court.
Mediation is beneficial to parties involved in a dispute, as it removes court fees and can bring an expedited resolution to an issue. Mediation gives individuals involved in a dispute the chance to explore a range of options that could bring about a reasonable solution to disagreements in a welcoming environment that encourages a healthy discussion.
An independent third party, the mediator, will bring together two parties involved in a dispute and will host a conversation with the express goal of finding an amicable resolution to a disagreement. Previous issues, current tensions, and agreements moving forward can all be covered during mediation meetings.
Mediation is an entirely voluntary service and can only take place if all parties involved in a dispute agree to meet. Once a positive dialogue is opened a resolution that suits all parties can be sought – this means that solutions should be tailored to the specific requirements of a situation and can be as flexible, or as rigid, as is necessary for a particular scenario.
All disclosures and information shared within mediation is confidential. This is crucial due to the pre-trial nature of most mediation sessions, as individuals should feel comfortable about sharing information without it being used against them in court at a later date. Confidentiality is also important due to the discussion of private information that is usually a part of the mediation process.
Some of the benefits of seeking mediation to resolve a dispute include:
Faster resolution, less costs: Taking a case to court can take months to resolve, as evidence is gathered and cases are made in front of a judge who then needs to pass a ruling based on the way the court case has played out. Organising mediation before a case goes to court can save time and money being spent on a lengthy court case.
Relaxed environment: Mediation takes place in a relaxed environment and a mediator should encourage an informal discussion that removes the stress and tension from a dispute.
Impartiality: Mediators are an impartial point of contact during dispute resolution and should act in the best interests of both parties. This impartiality can go a long way to help bring about an agreement between two parties.
Confidential: Mediation is completely confidential, meaning that you can feel safe and secure when disclosing information with the intention of bringing about an end to a dispute.
Increased control: During litigation it can be difficult to maintain control of how the case is being portrayed and parties can often feel that their points are not being considered fully. Throughout mediation, a mediator considers both sides of a dispute and the parties involved in mediation remain in full control of the resolution process.
Role Of A Mediator
Mediators are experienced and qualified individuals, who normally have a specific qualification that sets them apart as an expert in their field.
The role of a mediator is to encourage a positive outcome to sometimes complicated disputes. To achieve this, a mediator's main task is to keep dialogue positive and avoid any breakdown in communication.
It is important that mediators are impartial and act as a neutral party in the dispute, if you feel that a mediator is being biased or is not appreciating both sides of a dispute it is advisable to raise these concerns during mediation.
Mediators should not be seen as decision makers, they should not help either party come to a particular decision and they should not give any legal advice.
Simply put, mediators should act as an impartial conductor, who should help parties:
Define the issues involved in the dispute
Identify areas of agreement
Explore available options and solutions
Reach an agreement on the dispute
Mediation takes place at a pre-determined, neutral location. It is important that all parties involved in mediation feel comfortable with the location and this may be at either of the party's offices, the offices of the party's solicitors (if they have legal representation), or at a venue suggested by the mediator.
A mediator may choose to begin the mediation process with private sessions with each party involved in a dispute; this can help the mediator to gather the opinion of those involved and will ensure that they understand the basis of the dispute, however this is not a requirement.
Due to the informal nature of mediation the steps taken by a mediator can be flexible and alternative steps may be explored if a mediator feels they will bring about a faster resolution.
It is important to remember that due to the voluntary nature of mediation, either party can walk away from the mediation process at any time.
Generally speaking, mediation is broken down into the following steps:
Introduction: In most instances a mediator will begin the mediation process by sitting all parties down in the same room. They will take care of any administrative requirements and will introduce the session. During these introductory remarks the mediator should outline the mediation process.
Identifying problems: Once the mediator has introduced the session and outlined the premise of the mediation process, both parties should be invited to offer their side of story. While outlining their views, individuals should not be interrupted and a mediator should be following each side to establish the points of agreement and the points of contention between those involved.
Gathering information: Once all parties have has an opportunity to air their grievances and give their side of the dispute in a joint meeting, the mediator may decide to move the parties to separate rooms and begin a series of private meetings. During these private sessions the mediator will move between parties, establishing the basis of the disagreement and exploring negotiation possibilities. As the mediator works to remove the points of contention they may decide to bring the parties back together to speed up the negotiation process.
Reaching an agreement: Once the mediator has gathered enough information and reduced enough points of contention they will attempt to find a solution to the dispute. They may suggest a solution to the dispute, which – if agreed upon – will be signed by all parties involved.
While legal representation is not required during mediation, it is necessary that individuals that are authorised to agree settlement terms for both parties are present. It is common for legal representation to take part in the mediation process and most parties feel more comfortable having direct access to their own legal advice during mediation.
Due to the voluntary nature of mediation, mediators cannot guarantee any particular outcome to a dispute. Even if the mediator does find enough common ground to suggest a solution the parties involved do not have to accept the terms and any suggestions made by the mediator are not legally binding unless it is drafted into an agreement and signed by all parties.
If an agreement is signed during mediation then the dispute will be resolved and parties will move forward based upon the terms laid out in the agreement. If a resolution is not reached, no legal rights will have been affected by mediation and the dispute will proceed down the relevant litigation process.
One of the main advantages of mediation is its non-committal nature. There's very little risk involved and in instances where an agreement is not made parties find themselves in the same position as they were in before mediation begun, which is usually facing a court case. No details of the mediation will be divulged to the judge presiding over the court case, they will simply be told that mediation was sought but an agreement could be reached.
The prices charged by a mediator, as well as the location they are able to hold mediation sessions, will vary. It is important that you seek advice from a mediator that is qualified in your specific area of dispute and has experience of fostering a positive relationship between parties.
When looking for a mediator, ensure they are qualified, as this highlights a commitment to mediation and expertise on the subject.
As mediation is a process of compromise it is important that both parties feel comfortable with the mediator. The mediator should try to engage with both individuals in the initial pre-mediation meetings and make both parties feel comfortable.
In some instances a mediator may be able to approach an unwilling party and outline the benefits of mediation, this is particularly useful if one party suggests mediation but cannot gain consent from the other party.
At Simpson Millar LLP, we have offices around the country and can host or attend mediation meetings at any pre-agreed location. With a diverse knowledge base and expertise in multiple areas of the law, we can provide advice on the mediation process for your specific case and can recommend the best course of action for mediation sessions. Our qualified mediators are friendly and approachable and will help to promote an amicable solution in difficult circumstances.
Why should I use Simpson Millar LLP?
Our Mediators are specially trained to help you resolve your dispute.
Please email: mediation @ simpsonmillar.co.uk.
Get in touch with us and we will then arrange a convenient appointment.
For more on how we can help you, contact our mediation team by completing our no-obligation online enquiry form or you can call us directly
on 0808 129 3320.