At its essence, mediation is a process where an independent third party (the mediator) helps two or more parties in dispute to reach agreement. Sometimes the role of a mediator is described as“facilitating” the agreement between the parties. An increasingly popular alternative to legal proceedings, mediation is also a process that can provide the parties with a forum for “narrowing” the issues between them that they would ultimately want a court to determine.
Mediation is not the solution to every dispute –sometimes parties would rather a court or tribunal comes to a decision regarding their dispute - but, increasingly, courts and tribunals are encouraging litigants to consider mediation as an alternative to the traditional process.
What happens at a mediation?
Every mediation will be governed by the nature of the dispute, the number of parties involved, and how complex the issues are. Generally,the mediator will meet with the parties individually prior to the mediation and will send out an Agreement to Mediate that all parties, including the mediator,will sign.
A typical mediation takes place within one day with an agreement, normally in writing, signed by all parties. Ideally, a mediation is concluded with an agreement reached by the parties that is workable, with their relationship improved to the extent that any “fine tuning” can be agreed between them.
Most mediations end without requiring further input from the mediator, however the agreement can be retained by the mediator, or by the parties, and in some cases if it needs some time to be “tried out,” an agreement can be made to reconvene after a period of time. Parties can also agree to proceed as per their agreement and contact the mediator if a problem arises.
Mediation or Court?
The advantages of pursuing mediation over taking a dispute to court can sometimes vary from dispute to dispute, but essentially the advantages over court can be summarised as follows:
- increased confidentiality
- lower costs
- a quicker process
- less conflict
- the parties are in control
All matters discussed at a mediation are entirely confidential. The parties to a mediation, including the mediator, will sign an agreement that binds all of them to this concept of confidentiality. Nothing that has been discussed by anyone in a mediation can be repeated without the express consent of all involved or shared with a court without the express consent of all involved. Everything, aside from any agreement between the parties, is what lawyers refer to as “without prejudice”- in other words, if you ultimately don’t solve your dispute through a mediation and end up in court your discussions, and potentially agreement on some issues, in the mediation cannot bind you in any way.
Anyone who has been through the process of bringing a case to court, or being sued, often feels aggrieved at the costs of doing so.Rarely are lawyers praised for being “good value for money.”
Whilst each mediator will have their own way of charging,a mediation cost is typically fixed at the outset and often this cost is shared equally between the parties and is nearly always a cheaper process than litigating in court. Most mediators insist on costs being paid before the mediation begins, and there are no extra costs that could crop up at the end.On some occasions one party may agree to pay all the costs involved, for example when an employment dispute is the subject of the mediation the employer often pays for the mediation.
A quicker process
The next most frequent compliant of pursuing a dispute in court is the amount of time the process takes. From your first meeting with a solicitor to the hearing of a civil dispute in court, it is not unusual for a period of 1½ - 2 years to have elapsed. Courts and Tribunals are constantly trying to reduce this delay, and often to good effect, but for a variety of procedural and other reasons, the whole court process can take a lot of time.
Mediation is a much quicker process an therefore a more attractive way forward.
One way mediation is quicker due to the fact that parties do not need to engage a lawyer. Naturally, if the parties come to any agreement they will be advised to take legal advice as to the effect of any agreement, but they do not necessary always need the services of a lawyer at their side the whole way through the process as required in court.
Whether a party is introduced to a mediation through their lawyers, or if they directly engage a mediator, if all paperwork is ready and the parties are available, a mediation can be arranged within weeks of approaching a mediator.
Many disputes that go through the courts can be very damaging, if not terminal, to the relationships of the parties involved. Whilst it is not always possible, mediation can often preserve relationships between the parties.
One of the main parts of any mediation is when all parties involved hear what each feels the dispute, or problem between them, is.Often, disputes arise as a result of poor communication of a problem, or one party feels that the other doesn't understand why the other is aggrieved.Mediation can provide a forum for each side to “hear” what the other side is feeling. An apology or an explanation can often go a long way towards the resolution of a dispute between parties.
Additionally, the lack of the traditional adversarial court processes involving rules of evidence and cross examination are not present in mediation. The mediation is normally conducted in a neutral and more relaxed venue. The pressure on the parties is therefore reduced, often leading to a more proactive and positive engagement by all involved.
The parties are in control
The parties to a mediation generally set the pace of discussions, agree the agenda of the mediation, and decide when to take a break or when a satisfactory agreement is reached. If the parties decide to stop the whole mediation process, that is also within their control.
Naturally, any mediator will make suggestions about the issues. An effective mediator will be able to identify issues of dispute and in what order they might be discussed, but the process belongs to the parties and their positive involvement will make for a potentially more sustainable settlement and a more satisfactory process.
So what about remote mediation- is it better?
Following the launch of the only purpose-built,end-to-end encrypted online dispute mediation platform, mediations can now be conducted remotely in a secure way. Parties can stay in their own homes or businesses and benefit from a secure platform that allows a mediator to carryout the mediation in a similar way with the same results. Parties still have their own virtual rooms to speak to their lawyers in private, or simply to consider their decisions alone if not represented. The mediator will be able to speak to every party in their own private room and then, if necessary or desired, all parties can be in the same virtual room with the mediator.
Remote mediation only adds to the advantages of a traditional mediation. It is more confidential, as no one will even see you leave your house. It’s cheaper, as immediately there are no travel costs or room hire costs necessary. More comfort at home inevitably leads to less conflict, and a sense of increased control follows from the process.
Written by Michael Bready BL, Mediator & Arbitrator