About Mediation

What is mediation?

The legal systems of the United Kingdom and many other countries encourage mediation as part of an integrated approach to helping citizens and business resolve disputes in a proportionate way having regard to the nature and size of the dispute and likely costs involved to resolve it.

Mediation is a form of dispute resolution which is particularly appropriate to resolving disputes effectively and efficiently at the earliest opportunity. Mediation requires both (or all) parties to a dispute to agree to the process and mutually agree upon a mediator (or two mediators sitting as co-mediators) before a mediation can take place.  One party cannot unilaterally appoint a mediator and start a mediation hoping that the other party or parties to the dispute will agree to the process. If mediation is approached in good faith, the objective is to find common ground and ultimately a resolution that is acceptable to both (or all) parties.  The flexibility of the mediation process is one of its key strengths and can produce results that traditional negotiation between lawyers may not. 

Key features of mediation

An important feature of mediation is that the parties involved retain control of the process and, with the assistance of the mediator, ultimately decide whether or not they achieve a mutually acceptable agreement, in contrast to arbitration or judicial proceedings in which an arbitrator or a judge assesses and weighs up the strengths and weaknesses of the parties’ respective arguments and evidence and makes a decision based purely on legal principles.

A key advantage of mediation is that the discussions do not necessarily have to be restricted to the issues raised by the dispute, but can also explore the parties’ broader interests and needs, which may be critical to finding common ground and ultimately a mutually acceptable solution.

If parties are unable to find an acceptable solution or outcome to their dispute through mediation, they can still pursue the dispute through the Courts.  Effectively this means that there is no downside to parties agreeing to try to resolve their dispute through mediation, and in many instances, particularly in smaller monetary and/or straightforward claims, judges in Courts who hear and decide disputes which they feel should have previously gone through mediation may penalise the parties through cost orders. 

A party can choose whether to represent itself at a mediation or use a friend or professional adviser to do so.  However, in order to ensure the best chance of a successful outcome, it is important that the parties to a dispute attend the mediation hearing themselves even if they are represented by a third party so that they can hear what is being discussed first hand and respond accordingly. In the case of companies or organisations who are party to a dispute, they should ensure that the individuals representing them at the mediation hearing have full authority to negotiate and settle the dispute. 

The mediator’s role

The mediator’s role in a mediation is to facilitate and help parties to a dispute to talk about the issues relevant to them and, where applicable, the broader relationship with the other party or parties. 

Typically, the discussions will take place through a combination of private sessions in which the mediator talks with one party and its representatives only, and opens sessions in which both or all parties and their respective representatives are present with the mediator.In these discussions the mediator will ask questions to clarify the factual situation and also ask questions designed to “reality test” the strengths and weaknesses of the parties’ respective positions and arguments. 

The purpose of this is to prompt the parties to consider and reflect, and where appropriate, adjust and compromise their positions and arguments. However, mediators do not advise, judge, or offer legal opinions and all work I carry out in my role as a mediator, including any conversations or correspondence relating to a mediation I have with the parties and/or their representatives before or after the mediation itself, is done solely in my capacity as an independent accredited mediator, and not in my capacity as a solicitor.