WHAT IS MEDIATION?
Mediation is a voluntary and confidential way to resolve disputes without giving the decision-making power to someone else (like a judge). It involves sitting down with the other side in the dispute and a third-party who is neutral and impartial (the mediator). The mediator helps the parties identify the important issues in the dispute and decide how they can resolve it themselves. The mediator doesn’t tell them what to do, or make a judgment about who’s right and who’s wrong. Control over the outcome of the case stays with the parties.
WHY CONSIDER MEDIATION?
If you’ve given up on negotiating a settlement of your dispute directly with the other party, mediation may be the best way to solve it. Compared to a lawsuit, mediation is quick, private, fair, and inexpensive. And, if your dispute is with someone that youâ€™ll need (or want) to deal with in the future — such as an employer, landlord, neighbor, or co-parent — mediation will help you resolve your disagreement without destroying your relationship.
WHEN SHOULD YOU USE MEDIATION?
Mediation can be used to try to avoid bringing a court claim, or during a court case to try to shorten it and resolve the dispute before the court makes its decision.Mediation helps to keep lines of communication open and encourages positive discussion. It can clarify matters, gives you control over the outcome, and is useful if you are likely to have an ongoing family or business relationship with the other party.Mediation is relatively informal – with the help of a neutral mediator (who might be a solicitor), you and the other party try to reach a solution between yourselves.
WHEN IS MEDIATION NOT SUITABLE?
Mediation is unlikely to work unless all parties genuinely wish to reach agreement, or if one party has little incentive to enter into the process. It is not suitable when:
- a legal decision is needed because an area of law is unclear or untested
- an injunction is needed, for example to protect a party from violence or to prevent the other party from doing something.
In divorce or family disputes, the principal aim is to reach a solution about arrangements for children, property, finances etc, rather than to try to get the couple back together.
WHAT’S THE DIFFERENCE?
THE DIFFERENCE BETWEEN MEDIATION AND NEGOTIATION
In negotiation solicitors act for their clients to broker a solution, whereas in mediation a neutral mediator works with all parties (who may each have appointed their own solicitors) to assist them to reach a solution. Mediation may be used where negotiation has reached deadlock.
THE DIFFERENCE BETWEEN MEDIATION AND EVALUATION
Mediation and evaluation both involve the help of an independent third party but, whereas mediators help the parties to reach their own solution, evaluators consider both sides of the dispute and deliver an opinion. This can be on the likely outcome if the dispute was to be decided by a court, or on a point of law.
THE DIFFERENCE BETWEEN MEDIATION AND ARBITRATION
An arbitrator is not a mediator but an independent third party who hears from the parties involved in a dispute and then makes a decision about how to resolve it. Arbitration is often used in commercial, international commercial and employment disputes.
HOW CAN A SOLICITOR HELP?
A solicitor can provide advice about the mediation process – for instance, he or she can help you to decide if mediation is suitable for your dispute, and can refer you to a mediator. A solicitor can also provide legal advice during the mediation, and explain the options if you cannot reach a solution. In some cases, your solicitor may accompany you and speak for you during the mediation.
Some mediators are solicitors. Solicitor mediators have the benefit of both legal and mediation training, and they are highly regulated. Solicitor mediators usually specialize in commercial/civil or family mediation.
IS THERE ANY COST ASSOCIATED WITH MEDIATION?
Yes: you (or your solicitor, if you appoint one) should get confirmation from the mediator about how much mediation costs will be. If you are using mediation in a divorce or relationship breakdown, you may be eligible for public funding.
HOW LONG DOES MEDIATION TAKE?
Straightforward disputes may be resolved in a single mediation session of up to three hours, but more complicated cases or those where a large amount of money is at stake can take a week or more.
Family mediation typically involve three to five sessions, each lasting 60 – 90 minutes, over a period of two to three months.
IS THE MEDIATION DECISION FINAL?
The mediator cannot impose a decision on the parties, but a civil/commercial mediated solution is binding on all parties once they have all signed the written record (which is usually prepared by the solicitors).
The solution in a family mediation has to be turned into a court order in order to be binding. This is usually done by your solicitors, with your agreement.
WILL AGREEING TO MEDIATION UNDERMINE A COURT CLAIM?
No. Judges expect people to attempt to resolve their case before the court hears it, and will ask you if you have done so. Mediation is conducted on a ‘without prejudice’ basis which generally means that anything discussed in the mediation cannot be referred to in court, although the parties will of course be aware of what has been revealed.