What Is Mediation? A Way to Reduce Your Court Fees and Release Your Fears!
Lets start by understanding what mediation is not.
Mediation is not about advocacy, which aims to speak on behalf of one party.
Mediation is not about counselling, guidance or advice
Mediation is not arbitration, no judgements are made by the mediator
So what is mediation?
Mediation is a structured process during which a neutral third person (a mediator) assists those involved in disagreement or dispute to work towards finding a mutually acceptable agreement which empowers all parties taking part. It is a voluntary process.
Solicitors have of course always settled cases for their clients without mediation. However mediation provides a process for those cases which have not settled for whatever reason. It is effective for the following reasons:-
It gets the relevant people - the parties themselves and their solicitors - in the same place at the same time and focusing on the same problem, not just on procedure. In litigation this does not usually happen until the door of the court just before the trial. Cases often do settle at the door of the court, but usually with the disadvantage that a substantial amount of time, energy and legal costs have been spent by all concerned.
The parties are able to get things off their chest without sabotaging the negotiation. Each party can say what they feel, but in a controlled environment.
The parties may feel that they have had their "day in court", that they have been listened to and understood, by the other side and by the mediator.
Once the mediator has established some trust with a party and his or her solicitor, that party can talk in confidence to the mediator about what they hope to achieve. A dispute may appear to be about money, but it may be that there are underlying issues. It might also be possible to include other ways of resolving it apart from the payment of money.
A party can get things out in the open before a neutral mediator in a confidential situation. The mediator does not pass on information to the other side unless specifically authorised to do so. The mediator may then be able to find ways for the other party to cater for the fears or concerns of the first party which might otherwise not be addressed at all.
How can mediation help you?
The mediation process encourages communication, identifies issues, explores options and assists mutual problem solving. This promotes positive relationships and increases participation between parties.
Increasing the involvement and understanding among the participants in the decision making process, building trust and improving the quality of relationship can successfully address conflict and disagreements.
What do you need to do to take part in mediation?
You need to be able to openly discuss the issues involved in the conflict by bringing any information that is felt to be important/relevant to the process. You must also be prepared to listen to the views of the other parties involved.
So how does mediation work?
Mediation is a voluntary process so it is only possible if both sides agree to it. The mediator will talk to both sides to ensure their agreement.
If there is agreement to mediate, any party can fix a date for the mediation. Once the date is fixed, each party pays their fee.
Each party will prepare a short briefing statement for the mediator. This statement will briefly set out the facts and issues as far as that party is concerned. Copies of key documents should be supplied with the statement, such as any relevant contract. The parties may agree on the key documents to avoid duplication, but it is not essential.
It is preferable for each party's briefing statement and any documents to be lodged with the mediator a week or so before the mediation. A copy should be sent to the other side at the same time.
Any party can also, if they wish, prepare a confidential briefing statement for the eyes of the mediator only - the mediator will keep it confidential and not communicate its contents to any other party unless specifically authorised to do so.
The mediator may visit the solicitors on each side briefly before the mediation to introduce himself or herself in an informal way, but in any case would usually telephone the solicitors on each side (or the parties themselves if there are no solicitors) before the mediation.
The mediator will clarify that all parties will have authority to settle the dispute at the mediation.
The procedure at the mediation
The parties arrive fifteen minutes or so before the mediation. The mediator greets them separately and arranges for them to sign the mediation agreement.
The mediator will then spend a little time with each party separately to see how they stand and to consider with each party how best to proceed.
There may then be a joint meeting if the mediator considers it appropriate and if the parties agree. This is the most formal part of the process. The mediator invites all present to introduce themselves and then sets out the ground rules. The essential ground rules are:-
The mediator is completely neutral.
The mediator will not impose a solution - it is for the parties to reach agreement if they wish. Nor will the mediator give any evaluation or judgement.
Attendance at the mediation is voluntary - parties are free to leave.
The mediation is without prejudice to any court proceedings.
The process is confidential, so that neither party may repeat outside the mediation anything of a confidential nature said in the mediation.
Any private sessions between the mediator and a party are confidential, so that the mediator will not repeat anything of a confidential nature to any other party unless authorised to do so.
Each party is then invited by the mediator to state their case uninterrupted, taking up to about ten minutes. It is often preferable for the parties themselves to do this, but they may choose to ask their solicitors to do it.
After that the mediator usually sees each side separately again. There is no hard and fast rule about how a mediation is conducted. The mediator aims to establish a good relationship with each side by listening to what they say and seeking to understand the dispute from their point of view. The mediator can then assist the parties to negotiate, either by further separate meetings or by bringing the parties together if appropriate.
If agreement can eventually be reached, it will normally be put into writing and signed there and then.
Mediation is not always easy - it can be challenging and uncomfortable. It is also common for parties to feel part way through the mediation that they are wasting their time, that the other side are not prepared to give anything at all and that they might as well leave. Our mediator will always ask the parties to persevere with the process, and it is usually possible to work through the obstacles with the mediator's assistance to arrive at a deal.
Preparing for the mediation
Mediation is above all a negotiation. In any negotiation you want to persuade the other side that you have a strong case and that they should therefore settle with you on terms favourable to you. The parties and their solicitors should therefore prepare themselves for a negotiation. If a party is going to say for example that they suffered damage from alleged negligence, they should be prepared to produce whatever is necessary to persuade the other side of that, including perhaps a calculation of damages and supporting documents.
If you feel your case is strong but you cannot persuade the other side of that, then you may not be able to settle or you may have to settle for less than you would like.
Usually it is essential to bring with you to the mediation
(a) details of your legal costs to date and
(b) an estimate of future legal costs up to and including any trial.
It sometimes becomes apparent during the mediation that further work is needed by the parties. In that case it is possible for the mediation to be suspended so that the parties can for example exchange further information. The mediation can then be resumed at a later date if settlement is not achieved in the meantime.
Each side should consider in this context how strongly they wish to put their case in the opening joint session. It may be helpful to express a willingness to settle if you think that will assist in the negotiation. But it is up to each party to judge what they think is in their own best interests.
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