Mediation Questions Answered

What is mediation?
It is a voluntary process where the parties select an independent third party or neutral to assist the parties in reaching an acceptable solution. The mediator will discuss the problems with the parties both together and separately in private sessions known as “caucuses”

Is there a legal obligation to mediate?
It depends what field you work in or your dispute is in; With respect to civil and commercial disputes the civil procedures now encourage parties to consider forms of Alternative Dispute Resolution. While mediation is non-mandatory, the courts have a stick to apply in the guise of potential costs sanctions for those who unreasonably refuse to mediate. Please consider our brief legal guide for more information on the law in England and Wales.

What happens at a mediation?
It depends on the mediator,the way the the mediator was trained and frankly what happens with the parties but there are some general principles. First of all the mediator will call all the parties together, explain about the process and then invite each party to give their view of the case. Thereafter the mediator will break up the joint session and then engage in private sessions with each party. The mediator will shuttle back and forth and see if there is a basis for agreement.       

Is mediation growing?
Yes.

A recent report by Grant Thornton entitled “The future of dispute resolution” published in February 2006 revealed:

• “8 out of 10 external lawyers and 9 out of 10 corporates think that more cases will be resolved by…. ADR over the next 3 years”
• “the volume of High Court litigation has declined significantly in recent years”…..but in-house lawyers report a small rise in disputes over the last 3 years.”
• “ADR has made significant inroads into litigation market….” and the “focus and publicity for ADR has encouraged a corporate culture of managing disputes more proactively and seeking early settlements.”
  

What are the benefits of mediation?
There are a number of potential benefits of mediation:

• Effective – 80& of cases work for mediation. Contrast this to the litigation process which is unpredictable, produces winners and losers and the remedy is blunt and offers limited solutions
• Informal – Howver this shouldnot detract from the intensity of the process
• More cost effective - Mediation will normally be more cost effective than litigation. 
• Offers more solutions
• Retain control of the process compared to litigation where even the best cases are not certain to succeed
• Speedy – The ground covered in mediation would often have taken months in a traditional negotiation
• It is suitable where parties need a continuing relationship
• Confidential…litigation often takes place in a public forum
• The parties may impose cost penalties if the parties can show that they have not considered mediation

Do I need a lawyer to conduct mediation?
Not necessarily but it is crucial that prior to a mediation that you have prepared. A crucial aspect of preparation is that you do not treat a mediation like a court case.