Mediation is a flexible, voluntary and confidential form of alternative dispute resolution (ADR), in which a neutral third party assists parties to work towards a negotiated settlement of their dispute, with the parties retaining control of the decision on whether or not to settle and on what terms.
There are different styles of mediation but the most common is facilitative in which, unlike a judge or arbitrator, the mediator will not decide the case on its merits, but will work to facilitate agreement between the parties. Sometimes, mediators may be called on to evaluate the claim or issue and the strengths and weaknesses of a particular case (evaluative mediation).
The mediation agreement will usually require the parties to treat all discussions and documents as confidential and without prejudice. Usually, what is said or written cannot be used in later proceedings if the mediation does not settle, but there are some limited exceptions. The confidentiality of the process can avoid issues being made public that the parties want to keep private, as might happen in court proceedings.
Except in unusual circumstances, the parties themselves should attend the mediation. Unless it is a small claim, parties are usually accompanied by their lawyers. In the case of a party that is a company or association, its representative must have authority to reach a binding settlement at the mediation.
Mediation provides a private forum in which the parties can gain a better understanding of each other’s positions and work together to explore options for resolution. During the mediation, the mediator meets privately with each party to discuss the problem confidentially. This allows each party to be frank with the mediator and have a realistic look at their case in private, without fear that any weaknesses discussed will be communicated to other parties.
Most commonly, mediation is used to narrow issues in dispute, to prevent conflict from spreading, and to resolve disputes. The process allows more creativity and flexibility over settlement options than court or arbitration.
What happens at a typical mediation?
The mediator usually has discussions with the lawyers (or the parties if they are not legally represented) in advance of the mediation to ensure that the formalities have been complied with, and to identify the key issues. This helps to ensure that time is not wasted.
The mediator will greet the parties on arrival at the session and show each party to its own private room. Usually, the mediator will formally open the process with a joint session, attended by all parties and their lawyers. During this session, s/he provides an overview of the process, his or her role and the procedure. Each party then has an opportunity to make an opening statement, giving its perspective on the dispute and highlighting points of particular concern. After the opening, the mediator will have private discussions with each party to assist in the negotiating process.
Ultimately, this may result in the parties reaching a settlement that is either documented at the mediation or shortly thereafter, usually in the form of a settlement agreement. Alternatively, the parties may use the discussions at the mediation as a springboard for further settlement talks after the mediation.
Mediation does not always result in a settlement but it generally has a high success rate. Mediators who responded to the seventh mediation audit carried out by the (CEDR) in May 2016 reported that just over 67% of their cases settled on the day, with another 19% settling shortly thereafter.
Some of the potential benefits of mediation include:
The long list of the benefits shows that it can be difficult to argue against mediation.
However, some clients may still have reservations. Some of the disadvantages include:
Mediation agreements will usually include express provisions about confidentiality in relation to:
As confidentiality is integral to the process, a confidentiality clause is likely to be implied in the absence of an express confidentiality clause.
Who pays the costs?
Who should bear the costs of the mediation is a matter for agreement between the parties. One common approach is as follows:
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