Mediation
What is Mediation?
Alternative dispute resolution refers to methods by which parties may seek to resolve a dispute without asking a court to determine it. These include negotiation, mediation, arbitration, early neutral evaluation and expert determination.
Negotiation is the process by which the parties seek to resolve the dispute by agreement, either directly or through their representatives. Mediation involves negotiation between the parties with the assistance of an independent and neutral mediator, who facilitates the process but does not decide the dispute. In arbitration, the dispute is referred to an independent arbitrator who determines the issues and makes an award which is generally binding. Early neutral evaluation involves an independent evaluator considering the principal issues and giving an informed assessment of the merits, usually on a non-binding basis. Expert determination involves the appointment of an independent expert to determine a particular issue, commonly one requiring specialist or technical knowledge; whether the determination is binding depends upon the terms upon which the expert is appointed.
Mediation is a confidential process of negotiation between parties in dispute, conducted with the assistance of an independent and neutral third party — the mediator.
Features of Mediation
Mediation is confidential. It takes place outside the formal court process and gives the parties an opportunity to discuss the dispute and the possibility of settlement in a private setting.
The parties retain control of the outcome throughout. They decide whether agreement is possible and, if so, the terms upon which the dispute will be resolved. No outcome is imposed upon them.
Although mediation has an established structure and requires preparation, the process is deliberately flexible. It is usually conducted within an agreed period of time, determined by the nature and complexity of the dispute, and the discussions are allowed to develop as the mediation progresses.
A successful mediation may conclude with the parties entering into a legally binding settlement agreement. Even where the whole dispute is not resolved, the process may narrow the issues that remain between them.
The Role of the Mediator
The mediator is independent and neutral. The mediator’s function is to facilitate the negotiations between the parties and to manage the mediation process.
During the mediation, the mediator works with the parties, both together and in private sessions, to understand the matters in dispute and to assist them in exploring whether agreement can be reached. The mediator may move between the parties as the negotiations develop and may determine whether further joint discussion would assist.
The mediator does not act as a judge or arbitrator, does not determine the merits of the dispute and cannot impose a settlement. The decision whether to settle, and the terms upon which any settlement is reached, remain with the parties.
The Role of the Legal Representative
The legal representative acts for the party whom they represent; their role is distinct from that of the mediator.
Before the mediation, the legal representative will ordinarily be involved in preparing the client and the case for mediation, liaising over the arrangements for the mediation and preparing the necessary documents. These may include the mediation agreement, position statement or opening statement, case summary, supporting documents and, where appropriate, a draft settlement agreement.
The legal representative attends the mediation with the client and remains responsible for advising upon the legal aspects of the client’s case and the legal consequences of any proposed settlement. Where agreement is reached, the legal representatives will ordinarily deal with the drafting and completion of the settlement agreement and any consent order required.
Who Can Initiate Mediation?
Mediation may be proposed by either party to a dispute, or by the parties jointly.
In some cases, the parties will already have agreed in their contract that, if a dispute arises, they will attempt mediation or another form of alternative dispute resolution before taking further steps.
Where court proceedings have begun, the court may also encourage or order the parties to engage in alternative dispute resolution, and some disputes may be referred to mediation automatically.
When Can Mediation Take Place?
Mediation may take place before court proceedings are issued or after proceedings have begun.
An early mediation may enable the parties to resolve the dispute before substantial legal costs have been incurred. The difficulty may be that, at that stage, the parties have not yet had the benefit of statements of case, disclosure or exchanged witness and expert evidence.
A mediation held later in proceedings may take place when the factual and legal issues are clearer. By then, however, greater costs will have been incurred and the parties’ positions may have become more entrenched.
The appropriate time to mediate will therefore depend upon the circumstances of the particular dispute.
Refusal to Mediate
A party may decline an invitation to mediate made by another party. If the dispute proceeds to court, however, the court may take the refusal into account when considering costs.
An unreasonable refusal to mediate may result in an adverse costs order, even against a party who ultimately succeeds in the litigation.
A party should not simply ignore an invitation to mediate. The Court of Appeal has held that silence in response to an invitation to engage in alternative dispute resolution will generally be regarded as unreasonable. Whether any costs consequence follows will depend upon the circumstances of the particular case.
Appointing Miriam Bailey-Parkyns as Mediator
Once the parties have agreed to mediate and wish to appoint Miriam Bailey-Parkyns, her appointment must be agreed by the parties to the dispute.
The appointment is made for the particular dispute. The nature and complexity of the matter, the time likely to be required and the practical arrangements for the mediation will be considered before the appointment is confirmed.
Fees and Practical Arrangements
The mediator’s fee will be agreed before the mediation takes place. The fee may be calculated by reference to the time required or agreed on a fixed-fee basis, depending upon the nature and complexity of the dispute and the preparation required.
The parties will be informed of the proposed fee and the basis upon which it has been calculated before the appointment is confirmed. Some or all of the mediator’s fee will ordinarily be payable in advance.
The date and anticipated duration of the mediation will also be agreed. The parties will decide whether the mediation is to take place in person or remotely. Where it is to take place in person, a suitable venue will be required. If separate venue or hosting charges are incurred, those charges will be identified separately unless expressly included within the mediator’s fee.
Unless otherwise agreed, the mediator’s fee will ordinarily be shared equally between the parties. Each party remains responsible for its own legal and other professional costs incurred in preparing for and attending the mediation.
Attendance at the Mediation
The parties to the dispute — the disputants — attend the mediation and participate in the negotiations themselves.
Where a party is an individual, that person attends personally. Where a party is a company, partnership or other organisation, it attends through a person with sufficient authority to negotiate and to agree the terms of any settlement reached.
A solicitor, barrister or other adviser may attend with a party and provide advice during the mediation. The legal representative does not replace the disputant or, in the case of an organisation, the person authorised to make decisions on its behalf.
Preparing for and Conducting the Mediation
Where the mediation is taking place pursuant to a dispute resolution clause in a contract, the procedure prescribed by that clause should be followed.
Once the mediator has been appointed and the practical arrangements have been agreed, the parties prepare for the mediation itself. This includes preparing the documents required for the mediation and ensuring that those attending are ready to participate in the negotiations.
Documents for the Mediation
The documents required will depend upon the nature and complexity of the dispute. They will commonly include the mediation agreement, an opening presentation or position statement, a case summary, relevant supporting documents and, where appropriate, a draft settlement agreement.
The Mediation Process on the Day
The mediation will usually begin with an open session attended by the parties and the mediator. Each party has the opportunity to present a summary of its case.
The parties will then ordinarily move to separate rooms for private sessions with the mediator. The negotiations continue through those private meetings, with the mediator moving between the parties as the discussions develop. This is commonly described as shuttle diplomacy.
Where appropriate, the mediator may bring the parties together again in an open session.
The day has a degree of structure but remains fluid, with the mediator steering the direction of the discussions as the mediation progresses.
Settlement
The mediator cannot impose a settlement.
Where the parties reach agreement, the terms may be recorded in a settlement agreement and, where intended, become legally binding.
A mediation which does not resolve the whole dispute may nevertheless narrow the matters that remain between the parties.