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Q&A: The Importance of Mediation

View profile for Richard Kerry
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Many people are familiar with the word “mediation”, but only a few have actually participated in one.

This blog answers some of the most frequently asked questions about mediation and explains why it is such an important tool when resolving disputes.

  1. What is mediation?

Mediation is a form of alternative dispute resolution (“ADR”), i.e. it is used as an alternative to litigation and a trial before a judge. It is voluntary and flexible. A mediator will help the parties negotiate to try to achieve a settlement. Anything said during a mediation is confidential and cannot be used later in any court proceedings if settlement is not agreed. It can also be a helpful way of obtaining a better idea of your opponent’s arguments and whether they are likely to be successful if you went to trial.

  1. What is a mediator?

A mediator is a neutral third party, usually a lawyer or someone with expertise in a specific sector. They will work to help the parties reach an agreement but will remain impartial and will not evaluate or advise on the merits of either party’s case. If a settlement can be reached, the mediator will ensure the parties understand the terms of the settlement and assist in drawing up a settlement agreement.

  1. What happens at a mediation?

Before the mediation, the mediator will contact the parties to identify the key issues in dispute to ensure the time on the day is used effectively.

The day of the mediation will start with a joint session to explain the procedure and each party is given the opportunity to make an opening statement. Throughout the mediation process the parties can have private discussions with the mediator or their lawyer as well as discussions with their opposing party.

If settlement can be agreed, the parties will then work to draw up an agreement confirming the terms of settlement. If settlement cannot be agreed, any court claim will continue.

  1. When does mediation take place?

The parties can mediate at any time (whether a claim has been issued at court or not). Earlier mediation could lead to earlier settlement, which will keep costs down. However, parties should think tactically about when to mediate. If parties mediate before important evidence has been obtained or disclosed and each case has been properly set out, it is unlikely the mediation will prove successful.

  1. Is my dispute suitable for mediation?

Most claims are suitable for mediation especially in circumstances where settlement negotiations have proved unsuccessful to date, the parties want to keep matters confidential or want to continue dealing with each other in the future, or a quick outcome is required.

Mediation may not be suitable in situations involving fraud or if a specific point of law needs to be resolved. In such circumstances, the parties risk paying the cost of an unsuccessful mediation.

  1. Is it worth it?

Yes, mediation is almost always worth it. If settlement is achieved, that will bring a swift end to the dispute and the parties can move on, often saving significant costs. Even if settlement cannot be achieved, mediation can be an extremely useful tool to get a better understanding of your opponent’s position, overcome communication barriers and help you evaluate the merits of your own case. The courts also expect parties to engage in ADR and can penalise in costs parties who do not.

If you have a dispute and want to explore mediation, contact our Dispute Resolution team on 0121 355 0011 for further advice.