Mediation FAQ

Mediation is:

• A form of “alternative dispute resolution” (aka “ADR”) that is now seen as a key step in the process of litigation. Indeed, it’s now typical for Courts to recommend, and even direct, that parties use Mediation before embarking on, or pressing further on, with the traditional and formal Court-based claims process.
• A relatively informal process, managed by a trained and experienced Mediator, that seeks to guide the participants towards a mutually acceptable resolution to their dispute.
• Confidential among the participants, and for the Mediator, so that, unless there is unanimous agreement otherwise, the details of disagreements and their settlements will be kept out of the public domain.
• Without prejudice to the legal positions of the participants. This is an extremely important point. Nothing said or done in a Mediation can be used by one participant against another, or by any participants against the Mediator. Similarly, the Mediator cannot be called as a witness in any subsequent legal proceedings brought by, or against, any participant.

• Each Mediation is different; so it’s not possible to be definitive about costs. However, it’s inevitable that Mediation will cost less than formal legal proceedings, not least because the time taken to reach settlement is likely to be much shorter and the steps in the Mediation process are fewer.
• Typically, each participant meets its own costs of the Mediation and the participants share the Mediator’s fees equally.
• The list of cost elements is:
  • Mediation venue – often provided by one of the participants or their advisors;
  • Mediator – fees can be fixed on ½ and full day rates, plus preparation time;
  • Preparation – typically, the participants spend less time (and thus less money) on preparing for a Mediation when compared with the time and cost of preparing for a Court action;
  • Mediation time – the time allocation for a Mediation is totally dependent on the circumstances of the dispute. However, the minimum typical duration is ½ a day.

• Normally, the locational requirements are for a room large enough to accommodate all of the participants and the Mediator in a single meeting; and then separate rooms for each set of participants. Ideally, the Mediator has their own room or, at least, somewhere for private contemplation.
• The only exceptions here are in the realms of criminality. If, in the course of a Mediation, criminal acts are threatened or performed, confidentiality and non-disclosure obligations are almost certain to fall away.
• If no suitable Mediation location is provided by a participant, Unity Legal Solutions can make the necessary arrangements.

• Before the Mediation, the Mediator will agree with the participants as to how they want to prepare for and conduct the Mediation. Exchange of papers/documents is normal, but there is no formal “disclosure process” as there would be in a Court case. Indeed, the Mediator may advise that paperwork be kept to a minimum so as to move the process away from what might be seen as “adversarial” and towards the “problem solving” concept at the heart of Mediation.
• The Mediator will set out the “rules” for the Mediation process. These can be summarized:
  • Pre-Mediation exchange of documentation/evidence – statements, photos, documents, etc. As noted above, Mediators may want to reduce the volume and scope of such exchange so as to move away from the ideas of traditional “us-v-them” litigation;
  • Opening meeting with all participants, and their advisors. This allows each participant to state their views; say what they think the dispute is about; and, articulate what they hope to achieve from the Mediation;
  • Private sessions for each set of participants – these are confidential between the set of participants and the Mediator. The Mediator will not disclose what’s said or done, unless they have express, written authority to do so. These private sessions allow each set of participants to explore their own views and ideas and to express what they see to be their, and the other participants’ strengths and weaknesses;
  • “Shuttle-diplomacy” by the Mediator – they move between the participant groups seeking clarity on issues, delivering proposals from one set of participants to the other(s) and working through concepts and ideas that are presented as stimulants towards solutions for the matters under discussion;
  • Final agreement preparation – the participants do the writing and resolve the final statement of the settlement terms.
  • As far as reasonably possible, the Mediator will endeavor to ensure that the Mediation process is conducted in a civil and polite manner and, certainly, the Mediator will not allow aggressive, threatening or bullying behavour.
• The participants can allow whomsoever they please to attend the Mediation. Obviously, the more people involved, the more difficult it is to maintain confidentiality. In addition, if many people are allowed to speak in the Mediation process, the time required will increase; and that has a knock-on effect on venue requirements and costs.
• There is no formal requirement for witness, or expert, evidence. If the participants agree that witnesses/experts will be allowed, then the Mediation process will be adjusted to facilitate that.

• No, there is no rule that requires lawyers to be present before or during any Mediation. The participants are free to take advice from whomsoever they choose. Accountants, architects, engineers and other experts may well be more helpful that lawyers in some scenarios but, equally, the participants alone, or with their “supporters” (who might be friends or family members) can come together to try to resolve the difficulties.
• If one party attends with their lawyer, there is no obligation on the other party to also bring a lawyer to the Mediation. However, as a matter of professional conduct, the lawyer in that situation may feel uneasy and, indeed, may feel unable to proceed. This is a matter for the participants and the Mediator to resolve as early as possible in the Mediation process.

• Mediators are not judges and they do not judge the case.
• Mediators are sometimes referred to as “shadows in the room” because their job is to facilitate the process by which the participants explain their points of view to each other, and work towards a resolution.
• The Mediator may be a lawyer; and that may help with some aspects of the dispute – e.g: explanations of legal principals and points becomes easier. However, the Mediator – lawyer or otherwise – is not there to act as a legal advisor to any participant; and, is not there to reach a law-based decision on the matters presented.

• In legal terms, the outcome of any Mediation is binding under the law of contract. When the participants reach their settlement, its terms are set out, in writing and agreed by them. That agreement is then subject to the law so that, if a participant fails to do anything that has been agreed, the other participant(s) will have the right to sue for breach of contract. In effect, the dispute remains settled in the terms originally agreed, but the non-performing participant is subject, potentially, to new and additional sanctions.
• The solution to the dispute need not follow legal principles or requirements. The elements of the resolution to a dispute cannot entail criminal activity; or, activity that is contrary to any other then-current law or public policy. However, beyond that, the participants can agree to do, or not do, anything that they wish.

• In general terms, yes. Any participant is there of their own free will and so, at any time, they may leave the process. However, in typical cases, Mediators will try to prevent the breakdown of the process and, as a minimum, will try to understand the reason for the breakdown, if it happens.
• Of course, costs and fees will still be incurred in the case of abandonment of the process.

• This is simple. Please use the on-line “Mediation Enquiry” form to start your enquiry. Through the ensuing process, Unity will gather the information it needs and will issue the proposals that its experts believe best suit the nature and scope of the disagreement(s).
• Unity’s process will allow practical needs to be identified – e.g. time and venue requirements. From that, actual or likely costs and expenses can be identified.
• When all participants have agreed between them on the terms of the Mediation, Unity will be engaged and the Mediation process will start.

• The CDER news letter of 11th May 2016 says: The overall success rate of mediation remains constant, with an aggregate settlement rate from mediations of around 86%. The proportion of cases that achieve settlement on the day of mediation has fallen from 75% to 67% (which may reflect the increase in cases which are settling shortly after the mediation day rather than on the day itself).
• However, there can be no promises of success. The Mediator undertakes to try to help the participants towards a mutually acceptable settlement of their disagreement(s); but it’s up to the participants and not the Mediator to reach that position.

CEDR claims to be “The largest conflict management and resolution consultancy in the world.” See www.cedr.com

Mediation is:

• Mediation is a form of “alternative dispute resolution” (aka “ADR”) that is now seen as a key step in the process of litigation. It’s now typical for Courts to recommend, and even direct, that parties use Mediation before embarking on, or pressing further on, with the traditional and formal Court-based claims processes

• It’s a relatively informal process, managed by a trained and experienced Mediator, who guides the participants towards a mutually acceptable resolution to their dispute.

• Typically, the participants arrange to meet at a convenient location. Often that is provided by one of the participants. Otherwise, the Mediator can arrange a venue.

• As part of the pre-mediation process, the participants will agree how much time they are willing to commit to the Mediation. There are two elements to all Mediations: the pre-meeting period; and, the Mediation meeting itself. Before the Mediation meeting, participants can exchange papers, pictures, statements and anything else that they agree is helpful to the process. Typically, Mediation meetings take hours rather than days – a minimum ½ day (3-4hrs) should be assumed.

• Each mediation is different; so it’s not possible to be definitive about costs. However, it’s inevitable that Mediation will cost less than formal legal proceedings, not least because the time taken to reach settlement is likely to be much shorter and the steps in the Mediation process are fewer. Typically, each participant meets its own costs of the Mediation and the participants share the Mediator’s fees equally.

• No. You may have legal representation, but there is no requirement for that. If you are comfortable dealing with the matter yourself – you can have support from friends or family members – then that’s fine; even if the other participant has a lawyer engaged.

• Not in the way that they do in a court or arbitration. The Mediator establishes “rules” for the Mediation, but they tend to be practical and pragmatic rather than legalistic.

• Mediators are not judges and they do not judge the case. Mediators are sometimes referred to as “shadows in the room” because their job is to facilitate the process by which the participants explain their points of view to each other, and work towards a resolution.

• Yes. Totally. There will be agreements in place to underline that.

• Not at all. The process is “without prejudice”. This is a technical, legal term that means that nothing said or done in the mediation can be raised in any litigation. So, a judge or arbitrator cannot be told what happened at the mediation and the Mediator cannot be called as a witness in any legal proceedings.

• In a sense, nothing happens. The participants will go their separate ways and, if and as they want, will continue the dispute through other channels.

• In legal terms, the outcome of any mediation is binding under the law of contract. When settlement is reached, the terms are written into an agreement that the participants sign.

• In general terms, yes. Participants are there of their own free will and so they may leave the process at any time.

• This is simple. Please use the on-line “Mediation Enquiry” form to start your enquiry. Through the ensuing process, Unity will gather the information it needs and will issue the proposals that its experts believe best suit the nature and scope of the disagreement(s). Unity’s process will allow practical needs to be identified – e.g. time and venue requirements. From that, actual or likely costs and expenses can be identified. When all participants have agreed between them on the terms of the Mediation, Unity will be engaged and the Mediation process will start.

• The CDER news letter of 11th May 2016 says: The overall success rate of mediation remains constant, with an aggregate settlement rate from mediations of around 86%.

CEDR claims to be “The largest conflict management and resolution consultancy in the world.” See www.cedr.com