What is civil mediation?
Mediation is type of alternative dispute resolution (“ADR”) where a trained mediator will help the parties in a dispute reach a settlement. Within a mediation the parties will be separate, and the mediator will go into each room to communicate offers and legal arguments between the parties. In order for a mediation to work both parties have to be open to listening to the other party's point of view and be willing to compromise. Mediation can be held in person or virtually and there is no obligation for the parties to meet.
Is mediation compulsory?
Mediation is currently voluntary within the court process, it is possible that this will change in the future. Courts are very keen for parties to engage in ADR and if a party is deemed to have unreasonably refused in engage in ADR they can be criticised by the judge and there may be negative costs consequences.
Will a mediator decide which party is right?
The mediator will not make a decision or give their view on the dispute but will facilitate the discussions between the parties. The mediator will usually do this by encouraging the parties to consider the strengths and weaknesses of their cases as well as what the likely costs will be to go to a final hearing.
Is mediation confidential?
Ahead of a mediation the parties will likely sign an agreement which will include a confidentiality clause. Mediations are held on a without prejudice basis, which means that nothing said can be brought up within the litigation if the matter does not settle. This allows the parties to speak freely and not be concerned that what they have said in the mediation, or any concessions made will be used against them within the litigation.
How is attending a mediation different to attending court?
Settling a matter by mediation is usually quicker than the dispute going through the court process. For a claim to proceed through the court it can take over a year whereas claims usually settle on the day of mediation. Attending a mediation is usually less stressful than attending court. You will be able to be sat in your own home or in your solicitors' office. In addition to this you will not have to see the other side and you will not be cross examined on the evidence you have produced.
Within a mediation the parties have greater control over the outcome of the dispute opposed to judge making the decision. This allows more freedom over the settlement reached which can allow for the parties to reach a settlement which is mutually beneficial to both parties.
What happens if a matter does not settle during a mediation?
If a matter does not settle during a mediation it will continue through the litigation process, the parties can continue to negotiate following the mediation and can settle the matter at any point up the final hearing. Even if the mediation is unsuccessful, it will have likely assisted in narrowing the gap between the parties which can assist in a settlement to be reached shortly after the mediation took place. The Centre for Effective Dispute Resolution undertook a survey of the attitudes and experiences of civil and commercial mediators and found that in 2022 72% of matters settled on the day of mediation with a further 20% settling shortly after the mediation.
What are the costs of attending a mediation?
The costs of attending a mediation will vary depending on the complexity of the dispute. The parties will normally split the costs of the mediator and then each party will pay their own legal team. The costs of attending a mediation will normally be significantly less than the costs of proceeding with a matter through to final hearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.