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Why is mediation so important?

View profile for Tony Hughes
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Some simple answers to this question might be

  • to save money;
  • because it gives a better chance of resolving a dispute; and
  • because it can lead to better outcomes for both parties to a conflict.

I have offered some answers but many people will not understand the question because they do not understand what mediation is, so let me explain. 

Mediation has been described as “a non-adjudicative dispute resolution process under which the parties agreed to try to reach a settlement of their dispute with the assistance of an independent third party, using a process agreed by the parties.”

It all sounds very technical but, at its heart, the mediation process is triggered when two or more parties involved in a dispute decide that they need an independent third party to help them to negotiate.  Why would that be helpful?  Because even if parties who are in a dispute recognise that they need to negotiate, they can get to a point where it has become impossible for them to do it alone.

Often this will result from personality differences between the parties themselves, or very strong emotions.  In some cases, it is the lawyers themselves who have fallen out and since they have become the sole channel of communication between the parties, negotiation becomes very difficult. 

How mediation works

The mediation process will bring together decision-makers from each of the parties involved in the dispute, together with any advisers that they wish to bring, to the same physical location as an independent mediator.  Usually, there will be a separate meeting room for each of the parties and then a larger meeting room where joint meetings involving all parties can take place, if appropriate.

It is up to the mediator to determine what might be the best process to adopt to help the parties reach a negotiated solution. A typical model would involve an opening meeting at which each party might be invited to introduce themselves to the others and give a brief outline of their position.  The mediator will explain the “ground rules” i.e. that the mediation will be undertaken on a without prejudice basis and that he is not there to make a decision but is there to help the parties to make their own decisions and to reach a binding agreement.

Following the opening meeting, the parties retire to their separate rooms and the mediator will then have private meetings with each of them so as to get a better idea of what each party wants to achieve at the mediation.  Once again, the mediator will set out the ground rules but, in particular, will stress that anything said to him in the private meetings will remain confidential and that no information from the meeting would be disclosed to anyone else, without their consent.

Mediation has become increasingly important

It is thought that mediations lead to a settlement at the meeting or shortly afterwards, in about 70% - 80% of cases. 

In many disputes, mediation takes place after court or tribunal proceedings have already been issued, although often before the parties have incurred substantial costs.  However, recent increases in court fees and a more unpredictable regime for recovering legal costs are putting pressure on parties to think about doing so earlier.

How to get started

All that is required in order to start a mediation is to get an agreement from the other party that it would be sensible to use that process and then to find a suitable mediator.  If the parties are already represented, their solicitors will be able to help them in this process.  If neither party is represented, it is still open to the parties to find a mediator themselves, before they incur legal fees. The mediator can advise on any other preparation that may be necessary.

Make sure you understand what mediation is about – you never know when it might come in handy!