Mediation Process

Referring and Presenting a Case in Mediation

These notes give a brief guide to the Mediation process.

The 'right time' to Mediate

There has been some debate about when is the best time to use mediation.
If you want to find a settlement and there is sufficient information to make a reasonable assessment of the strengths and weaknesses of the case, yet there is difficulty in negotiating a settlement - you are ready to Mediate.

The following judge’s comment is a useful guide:

"It is a common difficulty in cases of this sort, trying to work out when the best time might be to attempt ADR or mediation.  Mediation is often suggested by the claiming party at an early stage.  But the responding party, who is likely to be the party writing the cheque, will often want proper information relating to the claim in order to be able to assess the commercial risk that the claim represents before embarking on a sensible mediation.  A premature mediation simply wastes time and can sometimes lead to a hardening of the positions on both sides which makes any subsequent attempt of settlement doomed to fail.  Conversely, a delay in any mediation until after full particulars and documents have been exchanged can mean that the costs which have now been incurred to get to that point themselves become the principal obstacle to a successful mediation.  The trick in many cases is to identify the happy medium: the point when the detail of the claim and the response are known to both sides, but before the costs that have been incurred in reaching that stage are so great that a settlement is no longer possible" Per HH Judge Coulson QC (Nigel Witham Ltd v Smith & Anor (No. 2) [2008] EWHC 12 (TCC) (04 January 2008)

The Agreement to Mediate

Mediation requires the parties to agree to its use. This is unlike litigation or arbitration. The consent to its use is a continuing consent right up to the end of the mediation.

The Agreement stipulates that everything within the mediation is confidential which includes not only the documents, but also what is said in the mediation. The Mediator cannot be called as a witness to say what happened in the mediation.

The process is voluntary and no-one can compel a party to either attend or remain in the mediation. 

It is also usually facilitative in that the Mediator is not normally asked to give his or her opinion, unlike a judge. There are other options, such as conciliation, if the parties do require a more evaluative approach.

The Agreement also contains details of the Mediator's fees, which can be a lump sum agreed for a fixed period with an hourly rate for any additional time spent over and above the allowed preparation time within the fixed fee or if the mediation overruns the agreed time limit.

Preparing for a Mediation

The purpose of mediation is for the Mediator to assist the parties to resolve their differences amicably; this does not require the same degree of documentation and preparation as if going into court – only a summary of each side's arguments and the key documents is necessary.

It is customary for each party to prepare a ‘position statement’ although some send copies of the court papers which might cut down the preparation time. However, these are often not as easy to digest as they could be and brief summaries of the issues, perhaps with supporting schedules are more beneficial. Other helpful information includes the state of play as regards disclosure, any expert evidence and any offers made plus an indication of the costs to date and the likely cost to the conclusion if it does not settle.

The Start of the Mediation

At the outset the Mediator wants everyone involved to know exactly what mediation is, and therefore some time is taken explaining how the mediation will be run.

There will probably be brief private meetings with each of the parties initially followed by a joint meeting with everyone around one table. That joint meeting can be as long as is necessary.

The Mediator will check both that the mediation agreement is signed and that the parties all have authority to reach a settlement if they so wish.

Parties' Submissions

The parties can make brief opening submissions perhaps saying how they or their clients feel and what they expect out of the mediation.

It is a chance to let off a little steam and show the strength of feeling about the issues involved but essentially it is to summarise the merits of each sides’ arguments. Both representatives and parties are encouraged to sound positive and co-operative about coming to mediation. 

Litigation tactics have no place to play in making submissions at a mediation.
If the dialogue is helpful the Mediator will let the joint meeting continue, but if not, then the Mediator will make sure it is short.

Private Meetings

These can take quite a while with the Mediator shuttling between parties from one room to the other.

They begin with an information gathering stage, some information entirely private that cannot be passed on, and some which can.

The Mediator encourages the parties to put forward different options so that issues may begin to become narrower as differing settlement possibilities emerge. As this process develops the Mediator may or may not call everyone back into one room.

If the mediation is not moving in the right direction and has got to some sort of impasse the Mediator can set a limit on the amount of time to continue or can reframe the issues and set the parties a task or ultimately end the mediation session.

Settlement Phase

If the parties come to an agreement, then a settlement agreement is drafted with or without the Mediator’s help.

It is sometimes suggested that one disadvantage of mediation is that it is not binding. However, while the mediation itself is a private and confidential process, the resulting settlement agreement is binding and enforceable as a contract.

After Mediation has ended

If the dispute is settled, and most mediations do settle, then the settlement agreement reached should set out what is to follow.

If it does not settle, then the Mediator will usually be pleased to help continue negotiations, perhaps by telephone or in a further mediation if the Mediator and the parties think that might help.