What is Mediation?

What is Mediation?

Mediation is a process in which a neutral, independent and impartial mediator brings disputing parties together in order that they may work collaboratively to find a solution to their issues.

Mediation is:

• • Effective – According to national statistics, the majority of mediations settle on the day or shortly after. Usually quicker, cheaper and less stressful than letting the court decide.

• • Fast – Mediation can be set up at short notice, usually within a week but depending on availability of parties. And it can take place at any time – either before proceedings have been issued or later in the process. Clearly, the sooner parties can engage in trying to resolve issues, the easier it can be.

• • Cost effective – It is generally cheaper to resolve a dispute in mediation than it is via the court. Reaching a resolution early can prevent substantial legal costs and the risk of going to court, it can also mean much less stress and allow people to move forward with their time being spent productively.

• • Voluntary – Parties choose whether to engage in the process and at any time a party can withdraw from mediation and end the process. Parties should seek legal advice as to whether they should attend or not as there can be cost consequences for an unreasonable refusal to mediate.

• • Consensual and not adversarial – Parties work together to find solutions. Mediation can preserve relationships either business or personal.

• • Private and confidential – Parties can talk and can explore ways forward. Everything said on the day and any proposals made are confidential and ‘without prejudice’ so nothing said can be used against anyone or repeated outside of the mediation. Of course, if a settlement is reached it can be made legally binding.

• • Impartial, neutral and independent – A mediator works equally for all parties, is not there to take sides or decide who is right or wrong and has no interest in the outcome. Mediators are not judges and unlike a judge or arbitrator, will not decide on what is going to happen. Mediators do not give legal advice, and the process usually works better if parties have legal advice and are supported by solicitors.

• • Future-focused – Whilst some discussion about the past might offer clarification, mediation is mainly focused on what is going to happen.

• • A flexible process – Mediation can be adapted to meet the needs of the parties.

• • Creative – Parties can create outcomes that a court cannot order.

• • Not binding until settlement – A Settlement Agreement is only binding when both parties sign.

Success rates

Although the overall success rate of mediation remains constant, with an aggregate settlement rate of around 86%, there is a variation from previous years’ audits in how those settlements are achieved. The proportion of cases that achieve a settlement on the day of mediation has fallen from 75% to 67%, but this decrease has been offset by an increase in the proportion of cases that settle shortly after mediation, rising from 11% to 19%.

When linked to the evidence that mediators are taking longer, this change in the pattern of settlement rate may well suggest that cases are becoming harder, with parties needing longer time to reach an agreement.