HOW CIVIL / COMMERCIAL MEDIATION WORKS
There are many reasons why someone may decide that they would like to appoint a mediator. In situations in which you are involved in a dispute or conflict:
You are involved in a dispute or conflict or difficult negotiations and appear to be in a state of impasse.
You wish to explore the possibility of agreeing a resolution without having to take court proceedings.
The court may have ordered you to mediate.
The one essential ingredient of any mediation is that both parties are willing to participate. If you want to mediate ideally you should check that the other party is willing to do so before approaching the mediator.
If the other party is reluctant or is uncertain about the process, you may find the following information helpful.
A good mediator will help the parties to build upon the essential elements of any good negotiation i.e.
Flexibility.
It is voluntary.
Finality – no appeal.
Confidential.
Immediate.
Without prejudice.
The mediator acts as a catalyst to achieving an acceptable solution. Unlike a judge or arbitrator, the mediator does not make decisions about the outcome and their role is to manage the mediation process, whilst remaining entirely neutral and independent.
The presence of a mediator allows the exchange of information, suggestions for resolution, offers and counter-offers in a controlled and considered environment which promotes healthy dialogue without emotions getting in the way.
In comparison with court proceedings mediation:
Is cheaper.
Is quicker.
Allows the parties to retain control of the outcome.
The process can be conducted entirely face-to face or entirely virtually/online and increasingly involves a blend of the two with preliminary meetings being by telephone or online even if the mediation day itself is online.
If you are having difficulty persuading the other party about the benefits of mediation, we are willing to speak with the other party to explain our neutral role and address any concerns they may have.
This can be a difficult process, particularly for those who do not mediate regularly. At the moment the profession does not have any universally recognised qualifications. As a result, it is possible for someone to set themselves up as a “mediator” without having had any formal training. It is also possible for someone to have undergone significant theoretical training but have no practical experience.
As you will see from the workplace summary below, not all types of mediation are the same, so choose someone familiar with the type of mediation you want.
Once a mediator has been appointed in principle, they will draw up an Agreement to Mediate, which sets out some guidelines and principles for the process (e.g. around confidentiality) and will invite comments from the parties and/or their lawyers with a view to this being agreed.
The parties will endeavour to agree a location or type of mediation, who will arrange and pay for the necessary facilities including food and drink. Ideally a room for each party is required for confidential discussions with each are required, but mediations sometimes proceed with pre-mediation preparation.
The most basic type of mediation involves the parties and the mediator meeting face to face or online with little or no advance preparation. Whilst the costs of such an approach are lower, the prospects of success are also much lower and such an approach is only advisable in the most straightforward (money-only) claims.
A good mediator will work with the parties beforehand so as to ensure that the mediation itself has the best chance of being effective. At the very least this is likely to require initial confidential meetings with each party and a list of things that each party might need to do in order to prepare properly e.g.,
Preparation of an agreed bundle of documents to which either party may wish to refer.
Preparation of schedules of loss or valuations with supporting documents.
Prepare and exchange a position statement.
Provide a confidential note to the mediator of any other important factors.
Provide details about who is attending, including authority to settle.
Prepare their negotiation strategy.
Joint opening session (plenary)
Many mediators will begin the day with a joint opening session (sometimes referred to as a plenary) with all participants which can be particularly helpful to those who have not mediated previously in order to explain how the day will unfold. This also gives the parties an opportunity to meet the others and provide an opening statement or raise questions for clarification.
If the parties are comfortable in this session, it can be used for exchanging information and starting to define the key issues.
Exploratory phase - private sessions (caucus)
This is where the real work begins. The parties will have danced around each other with the “positions” i.e. how they would like you to see their arguments. These may contain a mixture of law and fact.
For the first time, in many cases, the mediator will get a chance to talk confidentially in order to understand the real motivations, desires, interests, concerns and needs of the parties. For both private and commercial parties this is where they can share their underlying private and/or commercial objectives. Often, we find that the legal framework which the lawyers have constructed is a very clumsy tool for delivering these objectives. It is time for the parties to re-connect with those original objectives.
What are the real issues? What clarification is required? Do they have the right information? What is their perception of what the other party might want? What might they be willing to offer the other party in order to achieve the outcome they want?
From Exploration to Bargaining
At some point, the parties will need to start creating or exploring options for potential settlement. This is where the negotiation strategy can be helpful, flexed in the light of any new information.
The mediation session is confidential and impartial, allowing both parties to present their perspectives. Our role as mediators is to facilitate dialogue, identify common ground, and guide discussions toward resolution.
A succession of offers and counter-offers can lead to an agreement in principle but the detail still needs to be put down on paper in order to achieve a binding settlement agreement. Sometimes this cannot be done on the day, in which case the parties can agree the process by which it is to be made binding. The mediator may stay involved.
If an agreement is reached, it can be documented and made legally binding. If no resolution is found, parties still retain the option of pursuing litigation or other courses of action.