Our Litigation (dispute resolution) Department has been involved in several mediations recently and our trainee solicitor Jo Norris has written a note on the advantages and disadvantages of mediation and the processes involved.
As a trainee solicitor in the firm’s litigation department I have recently been involved in several mediations on behalf of clients.
In comparison with the court process I found mediation was:
- Less expensive
- Benefited from a mediator who had expert knowledge of the relevant field of work (a builder / architect / accountant and so on).
In one of the cases we dealt with the opposing party produced two documents at the mediation. We had not seen those documents before and our client may not have appreciated either their existence or their significance. Having sight of these documents at an early stage in the process enabled us to re-evaluate our client’s case and advise further as to the merits and led to an early decision as to how the matter should be concluded.
Both parties avoided the risk of paying the opposing party’s legal costs had the matter gone to trial and one party lost.
The procedure followed on a mediation is as follows:
- Before attending the mediation there will be a few preliminary steps that need to be dealt with. Firstly parties are required to mutually agree on which mediator is to be used. Parties will have sight of the mediator’s curriculum vitae and will be able to see the mediator’s credentials. Having this option of choosing the mediator enables parties to pick a mediator who has sufficient knowledge of the matter in hand or other factors such as the nature of the parties’ businesses.
- After the parties have agreed which mediator is to be used the mediator will arrange a date when both parties are able to attend. This process in itself can take a few weeks. Again this compares favourably with the court process where the court will generally give the parties a date on which they must attend even if it is not convenient for them or for their barrister or solicitor.
- Once the date for the mediation has been set each party will need to send their share of the mediator’s fee to the mediator along with a position statement. Each party will pay half of the mediator’s fees. The position statement is a brief summary of the case to help the mediator get to grips with each party’s views on the case and what each party hopes to achieve from the mediation.
- On the day of the mediation each party arrives at the venue along with their legal representatives (if one has been appointed).
- The parties will initially be seated in separate rooms.
- The mediator will first speak to each party separately. He will introduce himself and may discuss some of the key facts with the parties. He will also confirm how the mediation will be carried out. As it was my first experience in mediation I was not sure of what to expect. Having attended court on several occasions I was used to the formality of a courtroom with a judge. Mediation was however a different experience altogether. It was a totally informal atmosphere and the mediator having gone through the procedure in his initial introduction made all participants feel at ease.
- The parties are then seated in the same room. Each party in turn explains their position and what they would like to get out of the mediation. It will normally be the legal representatives who will do the talking at the initial stage, but when necessary they may ask their clients to explain or expand on a point. My principal Peter Kelly spoke on behalf of our client. It was my chance to assess him on his advocacy skills!
- Parties will then be seated in separate rooms again. The mediator will speak to the parties separately. Anything that is discussed with the mediator will remain confidential unless the party agrees otherwise. I found that this allowed a great deal of flexibility. In a court room each party would have to sit in silence while the other party had their chance to speak.
- Stage 8 may be repeated several times with the mediator going back on forth.
- Either party is entitled to leave at anytime.
- It may emerge that there is some room for negotiating an agreement, and if so, where the parties have agreed for the mediator to do so, the mediator will relay this with the other party.
- If negotiations seem positive the mediator may invite the legal representatives to a separate meeting room where they may enter negotiations. Legal representatives will have authorisation from their clients, and will have an idea of how far their clients are willing to go. If the legal representatives need to relay any point to their client they will return to the room where their clients are seated and discuss the matter before returning to the room where negotiations are taking place.
- If negotiations are successful and an agreement is reached it will be recorded in a document which will be signed by the parties. This document will be binding on the parties. If an agreement is not reached and nothing is signed then the parties will not be bound by anything said in the mediation.
- Where an agreement is reached and signed the parties will need to present a copy of the signed document to court where the matter has already reached Court and a trial hearing is pending. Where there are no court proceedings the parties are required to sign a draft Order which must then be presented to the court.
Please note that this article does not constitute legal advice. Each case is different. If you would like to find out more about mediation or seek advice on the matter which is in dispute please contact Peter Kelly by calling 01582 725311; alternatively email at email@example.com.