In this section you’ll get answers to the questions Chris is usually asked regarding mediation. Of course it is a difficult time for all parties involved, so the aim is to be as transparent as possible.
Mediation is a form of Alternative Dispute Resolution (“ADR”). It is a way to resolve disputes by alternative means; that is, an alternative to going to court. Other means include:
The common feature is the nonbinding nature of these processes. The parties are in control throughout, and can abort the process at any time. They contrast with processes where the parties surrender decision-making to a third party, and then do their best to persuade that party of the merits of their case. Such processes include arbitration, expert determination and, of course, “going to court”.
Mediation is by far the most popular form of ADR. One should think of it as facilitated negotiation, since the mediator is a neutral third party whose sole function is to assist the parties to find common ground, and reach a solution they can live with. The mediator has no powers, does not make any judgments, does not give advice, but gently explores the nature of the dispute, and gradually draws the parties together to reach an agreement, which is binding on them only if they agree that it is binding.
And if the process fails, everything said at the mediation was in confidence and without prejudice. The mediator will never play a part in any ongoing process, and the parties can go to court and have a trial if that is the only way of resolving their dispute.
The success rate is surprisingly high, even taking into account judicial pressure on unwilling parties, and those who mediate with no intention of settling; it still runs at 65% to 75%.
Chris’s settlement rate to date is about 80%.
The mediator explains the process to everyone, and then each party or their solicitor explains the dispute, uninterrupted, from their point of view. Each side then goes into separate rooms, and the mediator moves from one to the other, learning in confidence the parties’ true feelings about the dispute, what aspects they may be prepared to compromise, and so on.
The mediator shares such thoughts with the other side only with express permission, and only at a time when any such information would be most helpful to a settlement. The mediator may suggest imaginative solutions.
When agreement is reached, a joint meeting is held to ratify it. All parties concerned then sign the agreement. It may take the form of a Tomlin order, Settlement Agreement, or some other legally binding document.
If any party reneges on the agreement, the signed agreement is a document on which legal action may be pursued. If litigation is under way, one party (usually the claimant’s solicitor) informs the court that agreement has been reached and that a trial is no longer needed. Everyone can then get on with their lives; there are no other formalities.
The parties are in charge throughout. The mediator has no powers, other than those given to him by the parties. Everything is in confidence and without prejudice, and no legal rights are affected in any way. If the process fails, the parties can still go to court, and nothing said at the mediation can be referred to.
Because the parties are in charge, they can abort the process at any time; but with the high success rate, and the disadvantages of the alternatives, they may be foolish to do so!
With a trial, an arbitration or an expert determination, the parties must surrender to someone else both the way in which the dispute is considered and the eventual decision. And with rare exceptions, the only outcome is a monetary one: X must pay £Y to Z (and usually their costs as well). So there is inevitably a winner and a loser.
With mediation, the decision can be anything the parties agree: a payment; an apology; a promise to do something differently in future – anything the parties agree. And if the parties don’t agree, then the mediation fails.
Parties will agree to something only if they can live with it, which is why mediation is often called a win: win process; agreement is reached when both parties feel they are better off than if they continued the fight.
It depends, but with Chris the answer can easily be found. Look at the page on Fees & Facilities. The parties pay the mediator’s fees equally.
In addition there may be the cost of meeting rooms, and of course professional advisers to each party will charge their own fees. They may be recovered in part from other parties as part of the agreement, but that is rare; why should one party pay the costs of another, when a win: win agreement has been reached?
Initially, both sides pay equally. It may be part of the mediated agreement that one party will pay the other side’s costs including the mediation fee, but that is something to be agreed upon during the process.
Yes, you can take your legal advisers, a friend, or someone connected with the dispute – say, a key employee. You may also find it helpful to be able to “phone a friend”; it all depends on the nature of the dispute, and what help you think you might need on the day.
Bear in mind, though, that this is not a court of law. Long speeches from legal advisers are seldom helpful, and it is not normally necessary to bring experts. Mediations work best when all concerned can get to the facts and contentions as speedily as possible, and then make progress with reaching an acceptable solution.
It is essential that the decision maker attends, or at least is contactable – an insurance claims manager, for example. The mediator will ask you to declare at the outset that you have authority to settle the case, so any variation to unlimited authority must be settled beforehand.
Do it as early as possible before legal costs and expenses are incurred; just as soon as both sides know what the dispute is about and where the other party is coming from.
It is a sign of maturity, not of weakness, to invite the other party to mediate. And if they refuse, they could well face cost penalties.
Certainly not! It is never too late to mediate; it can even occur during a trial. The court will recommend it anyway, and for claims below £10,000 you may access the free court mediation service. But this is limited to one-hour telephone mediations.
Mediation can be arranged promptly; usually within two or three weeks, depending on the parties’ other commitments, but sometimes within hours.
The mediation itself seldom takes more than a day, and it is said that if mediation is booked for three days, the serious talking starts only on the last afternoon.
All of Chris’s mediations so far – but one – have settled in a day (although they can go into the evening, and the latest settled at 5 minutes to midnight!). You are strongly advised not to have any evening commitments on the day, since if progress is being made, it could be unwise to adjourn.
The process is consensual, so both parties must agree to meet. Chris would be willing to explain the process (though never the rights and wrongs of the dispute) to the other side and attempt to persuade them to mediate; but if they still refuse, the mediation cannot take place.
They are, but only as mediators. Mediation training is lengthy and arduous, but it consists almost entirely of learning to listen and to empathize with the parties’ problems.
A legal mind is seldom essential and, although many advisers think that a lawyer is required for a dispute with complex legal arguments, they often mislead themselves, since mediation is about seeking a solution, not about winning legal arguments.
If the parties can live with the solution they reach, that must be the right solution, whatever a judge or eminent counsel might think.
Chris has often been asked to mediate a dispute because he is a Chartered Accountant and it concerns money; but it is surprising how often the parties just need someone to talk to without being judgemental, someone who just understands their situation.
Almost. Disputes between parties even of unequal bargaining power can be better suited to mediation than litigation. Everyday contract cases, financial disputes, personal injury and negligence, clinical negligence disputes, professional negligence, pensions, construction, shipping… and so on. Invalid reasons for refusing to mediate include that a party believes they have a watertight case, or that a full and detailed refutation of the other party’s case has already been supplied. Invalid reasons does not include the fact that heavy costs have already been incurred; in fact, it is surprising how often the parties have already incurred heavy costs before the mediation started, and mediation often provides a welcome solution in avoidance of further heavy costs.
It depends. Consider this:
“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.”
Nigel Witham Ltd –v Smith & Isaacs  EWHC 12 (TCC)
So, the earlier the better, as soon as the issues are known.
Mediation is an informal, low cost way of resolving disputes. It works best before substantial legal costs have been incurred, and before the parties’ attitudes have hardened; and there is no bar to mediating before proceedings have been issued.
Indeed, the PreAction Protocols urge the parties to do precisely that. But it is foolish to mediate too early, before the parties’ positions have been clarified.
So in practice, lawyers and their clients must keep mediation in mind throughout the litigation process, and should seriously consider it as soon as the issues are becoming clear.
With PreAction Protocols, that is usually when the Letter before Claim is issued and the Letter of Response is returned.
Having said that, mediation can be arranged at any time, even immediately before trial or in an adjournment during a trial. And in that situation, the trial judge is likely to be pleased when he is told that the parties have reached a settlement, and that the trial may be terminated.
It is not necessary for all concerned to meet physically. Various virtual programs are available (Zoom, Teams, Google Meet) but Zoom is preferred because of the ease by which parties, advisers and others involved can be put into breakout rooms. In one such mediation, Chris managed with 16 participants all in different locations – the parties, a barrister, solicitors, experts, other advisers – and none of them ever met!
A concluded mediation should result in a Tomlin Order drawn up by the parties’ legal advisors, if they have them, to be submitted to the Court to advise that a trial is no longer needed. If legal proceedings have not started, a Settlement Agreement can be concluded. Either may be enforced as a contract.
The parties can have another attempt at mediation on another day, if they wish. Alternatively, they may resort to their lawyers and ultimately the Court, or walk away from the dispute. But with a failed mediation, the parties emerge with their legal rights and obligations intact; nothing discussed on the day may be repeated in court.
No, because the mediation process is conducted on a “without prejudice” basis, so anything said remains private between the parties and the mediator and cannot be used in any other forum, including the Court (save in exceptional circumstances defined by case law – and they are very narrow).
Chris would be pleased to reply to any further questions by email