Mediation is dispute resolution by negotiation, with a qualified mediator, to reach an agreed resolution. In contrast to arbitration and court litigation, mediation is a short process, usually taking no longer than one month.

The key point of mediation is that the parties control whether the case settles or not. The result is not imposed by a judge, arbitrator or the mediator.

Why prefer Mediation?

Why prefer Mediation? There are several factors which the parties together will want to take into account. These include:

• The risk of losing in litigation or arbitration and being in a very bad position financially, with a substantial liability for legal costs.
• Mediation will probably reach a faster conclusion.
• Mediation concludes by agreement and can avoid damage to commercial relationships, which may be caused by court/arbitration proceedings.
• Mediation costs less than arbitration or court proceedings.
• Mediation is often ordered in court proceedings before a case can proceed to trial. Mediation Procedure – The process is quite short, taking less than a month. Briefly, it is as follows:
• The parties agree to mediate (or are ordered to mediate by the court).
• The parties agree on mediation terms, that is, setting out when and where the mediation will occur, who will attend and what mediation statements etc. may be submitted.
• A mediator is agreed by the parties and appointed.
• The parties submit mediation statements. These are summaries of their cases. The parties can agree to limit the length. These are how the mediator understands the case. The parties can also agree to provide the mediator with a confidential briefing before the mediation.
• The mediation takes place. Several rooms will be needed. Each party needs a room of its own, with one room for all parties.
• The mediation will be attended by the parties and their lawyers. It is very important that the parties’ representatives have full authority to make a deal at the mediation. An important decision-maker must attend the mediation for each party.
• At the mediation each party will make an opening statement after an introduction by the mediator. Ideally these opening statements are made by the parties themselves. They are much more effective than statements made by their lawyers. The mediator will remind the parties that they are attending the mediation in order to try and settle the case by agreement.
• The parties may then move to their separate rooms and the mediator will move between them discussing aspects of the case with each party and then passing messages between the two parties, inviting them back for a joint session, if that is helpful. If successful and the parties reach an agreement with which they are both satisfied, then a settlement agreement is drawn up.


Mediator’s Role

The Mediator’s role is to make the normal negotiating process more effective. The mediator will assist communication. Mediator helps the parties focus on the key points of their own case, including its weaknesses. Mediator will also help the party understand and appreciate the other party’s case.

Mediator brings realism to the party’s expectations, as well as reminding them of what the cost will be for taking the matter forward in court or arbitration and the risk that they will not succeed. The parties will often disclose to the mediator their ‘bottom line’ in a way they would not be willing to do in ordinary negotiations. This is because the mediator cannot reveal anything to the other party unless he is authorized to do so.

The mediator holds confidential information from both parties, which he can use to help reach settlement. Mediation makes slow progress at the start of the day and then gathers speed towards a settlement as time starts to run out. The parties become concerned at the lack of progress and fear that the effort they have made will not result in a settlement.

Not every case is suitable for mediation. For example, there is little to negotiate if one party owes a debt to the other party and will not or cannot pay. In my experience, mediations are particularly effective when there is more than one defendant, who is potentially liable. In a mediation, they may all be willing to contribute something to settle a claim and to save their costs of defending the claim and the possibility that anyone of them will be found solely liable for the whole of the claimant’s claim and all parties’ costs.

Furthermore, where the parties have claims against each other, mediation can be very effective. In the most common form of mediation, the mediator makes no comment on how strong a party’s case is. However, parties can ask the mediator to do so, in either a binding or non-binding way. This is known as Early Neutral Evaluation. The intention is to tell the parties whether their claim is as strong as they think. This can save costs if they agree not to pursue a case they will lose.

Most Mediations are resulted in a settlement. On an average, about 70% settle the same day and a further 15% to 20% within a few days. Mediation is very effective at ending disputes.