Mediation - what do you need to know?

Advice  |   20 January 2017

Parties in dispute are frequently encouraged to try and resolve their disputes before going before a Judge; this is known as Alternative Dispute Resolution.

Parties in dispute are frequently encouraged to try and resolve their disputes before going before a Judge; this is known as Alternative Dispute Resolution (ADR). Mediation is often used as one type of ADR to try and resolve disputes.

In this article, we attempt to tell you what you need to know, based upon questions that our clients often ask.

What is mediation?

It is a voluntary process designed to resolve dispute with the help of a neutral third party (Mediator) whose job it is to help the parties discuss and reach agreement.

The parties themselves remain in control of whether or not to agree and what the settlement terms should be.

Why Mediate?

In English Law, there is no formal requirement to mediate.

However, it is often useful and is a highly successful method of resolving disputes quickly, without the inherent risk of requiring a Court Hearing.

Importantly, if you unreasonably refuse to mediate or simply do not respond to an offer to mediate, the Court can impose costs sanctions on you.

The Court places great emphasise on ADR The rules governing procedure encourage parties to try and settle disputes and solicitors need to confirm to the court that they have explored the prospect of ADR with their client.

Is Mediation Confidential?

Generally, what is said in mediation between the parties is confidential, as are any documents that are produced solely for mediation.

If the dispute is not resolved and there are future proceedings, generally these documents and discussions cannot be disclosed to the Court.

There are limited exceptions if disclosure is required by law, or if you are trying to enforce a settlement agreement.

If confidentiality is a key consideration, then discuss this with your solicitor before the mediation date, to ensure that any agreement reached includes an express confidentiality provision.

What happens on the day?

Mediation is flexible, and so the procedure changes depending upon who the Mediator is and the requirements of the parties. However, a typical day can include;

Both parties and the Mediator sit in one room. The Mediator describes the events of the day and both parties are asked to make opening statements.

Both parties then go into their own rooms and the Mediator goes between each room, discussing and trying to help the parties reach an agreement. What is said in your own room, even to the Mediator, remains confidential, unless you ask for a message to be passed to the other side.

If it is required, the parties can return to the main room for further face to face discussions, or simply stay in their own separate rooms and send messages via the Mediator.

If settlement is agreed, both parties will discuss to agree the terms of the Mediation Agreement.

Your solicitor is likely to discuss mediation with you, but should you have any questions then please do not hesitate to contact the Dispute Resolution Team.