What is Mediation
Mediation (or Conflict Resolution) is a voluntary and confidential process in which a neutral third-party facilitator helps people and/or companies discuss difficult issues and negotiate an agreement.
Basic steps in the process include gathering information, framing the issues, developing options, negotiating, and formalizing agreements. Parties in mediation create their own solutions and the mediator does not have any decision-making power over the outcome.
The purpose of Business Mediation is to find an agreement that’s acceptable to all parties, and settles the dispute.
Mediation is one form of Alternative Dispute Resolution (ADR) that’s often adopted by parties to resolve their problems or disputes. ADR is not a soft option resulting in ‘giving away the business’, ‘paying a premium’ or ‘taking the easy way out’. It’s a disciplined way of resolving issues; an extremely effective business tool that is available to parties in dispute long before they contemplate litigation. If the parties are already involved in litigation, ADR can help close the dispute quickly and cost-effectively.
ADR now forms part of the Civil Procedure Rules and the courts expect parties at least to have considered mediation and to provide good reasons if they have not undertaken it. Mediation is now widely recognized all around the globe as the most popular form of ADR, offering solutions beyond those that a court can usually impose and often leading to a win-win situation.
Features of Mediation
Voluntary
Nobody is forced to take part and parties can withdraw at any time. Parties opt for mediation because they genuinely want to find a solution.
Flexible
There are no set rules or procedures to follow, unlike court. A court can generally only provide compensation; mediation can create many different options.
Quicker
You are likely to reach a solution more quickly through mediation than by going to court.
Confidential
Mediation takes place on a ‘without prejudice’ basis; the negotiations cannot be referred to in court or relied upon by the other party if the discussions fail.
Parties are in control
Solutions are found by the parties themselves and are not imposed by a third party.
Non-binding process
Neither party is committed to following the proposed settlement. However, proposals are usually converted into a legally binding agreement and failure to comply could then give rise to a breach of contract.
What sort of cases can be resolved through mediation
The mediation service can help to resolve disputes involving:
- partnership disputes
- shareholder disagreements
- employee/employer disputes
- clients’ claims
- contractual problems
- purchase or sale disputes
- shareholder/director issues and
- practically any other dispute that could end up in court.
However, mediation may not be suitable if:
- an injunction is sought
- a judgement is required to establish a legal precedent
- or one party believes publicity will help their case.
How does the mediacion proces work
When we receive a mediation enquiry, we contact the parties to the dispute to:
- explain how mediation works
- explain how our service operates
- get an understanding of the issues and
- establish the parties’ willingness to mediate.
We then write to the parties, send them a contract for our services and ask them to send us whatever documents they want the mediators to read.
We contact the parties to arrange a mediation date once we have received their signed mediation contracts, their mediation documents and their fees.
What happens on the mediation day
The mediators bring all the parties and their representatives together into one room for a joint initial meeting. This allows everybody to introduce themselves. The mediators give a brief overview of the day and they ask the parties to sign a Mediation Agreement at that stage.
The mediators ask each party to give a brief summary of the case and the issues as they see them. Each party’s summary should take no longer than five minutes.
The parties then go to separate rooms. The mediators hold a series of separate, confidential and without prejudice meetings with the parties, which allow them to examine the issues, develop options and find proposals with which the parties can agree. Of course, if the parties agree to continue the discussions face-to-face, the mediator will continue the meeting with both parties trying to find common points.
If the mediators can find proposals that both parties can agree, the mediators incorporate them into a settlement agreement and they get both parties to sign it on that day. The agreement becomes legally binding once all parties have signed it. You will receive a copy of the agreement as soon as all outstanding fees have been paid.
What happens on the mediation day
The mediators bring all the parties and their representatives together into one room for a joint initial meeting. This allows everybody to introduce themselves. The mediators give a brief overview of the day and they ask the parties to sign a Mediation Agreement at that stage.
The mediators ask each party to give a brief summary of the case and the issues as they see them. Each party’s summary should take no longer than five minutes.
The parties then go to separate rooms. The mediators hold a series of separate, confidential and without prejudice meetings with the parties, which allow them to examine the issues, develop options and find proposals with which the parties can agree. Of course, if the parties agree to continue the discussions face-to-face, the mediator will continue the meeting with both parties trying to find common points.
If the mediators can find proposals that both parties can agree, the mediators incorporate them into a settlement agreement and they get both parties to sign it on that day. The agreement becomes legally binding once all parties have signed it. You will receive a copy of the agreement as soon as all outstanding fees have been paid.
Will the other party use mediation to gain information about my case?
You decide what information to disclose. Mediation cannot require either party to reveal information they want to keep confidential. If you prefer, you can give the mediators the details in confidence.
However, the more you disclose openly about the strengths of your case, the greater your chances of a successful outcome. Information shared in the course of mediation is without prejudice. This means that, generally, it cannot be used against you in court.
If I suggest mediation, will this make my case look weak?
No. If you suggest mediation, it’s a sign that you’re confident of your case and aware of the potential costs to both parties of going to court.
For more information regarding the Mediation process and how we can help you, please contact us.
