The use of Mediation as an alternative dispute resolution (ADR) procedure is encouraged and the courts have adopted a variety of stances towards its use, ranging from more or less gentle persuasion, to the making of direct orders to the parties to submit to mediation.
It is an effective means of settling disputes and less expensive than taking a dispute to trial. Litigation should really be a last resort. The parties to the dispute should consider whether negotiation or some other form of alternative dispute resolution might enable them to settle their dispute without commencing proceedings. Even if proceedings are issued, parties are still encouraged to try to reach settlement and mediation is often used as a means of doing so.
Mediation is becoming increasingly popular and this is likely to be not only because of a greater awareness, but also because of the recent significant increases in court fees (April 2015, when the fee for issuing some claims rose from £1,920 to £10,000). With the encouragement of the court it is likely that the number of mediations taking place will continue to increase.
Mediation reduces the risks of litigation, when you don’t always know how witnesses will be perceived, whose evidence the Judge will prefer, or indeed what side of the bed the Judge got out of that morning! Before the mediation takes place it will be agreed who the mediator is going to be. At a trial the parties will often not know who the Judge is going to be.
The usual course of events for a mediation is that the parties will agree a mediation bundle. This will include all relevant documents. Mediation Position Statements will be exchanged in advance of the mediation and sent to the mediator with the mediation bundle. This is an opportunity for each party to get their point of view across.
On the day of the mediation there will usually be an open session where each party has their say and any outstanding issues are clarified. It is an opportunity for the parties to speak openly and make their cases clearly. In court you do not have the open opportunity to speak to the other party. This is a therefore a powerful tool and can be effective in sowing the seeds of doubt in the minds of one’s opponents, to persuade them to think again, to consider what, previously, had been unthinkable.
The parties will then usually separate into their own rooms and the mediator will “shuffle” between the two, testing each case and passing on offers and counter offers. The mediation is held on a “without prejudice” basis, therefore what is said and disclosed at the mediation should not be used outside of it. If the mediation settles the dispute this is written into an agreement which is signed by all parties.
The mediation format is not set in stone and can be varied. It is however effective. To date (June 2016) we have had much success in settling disputes using the mediation process.