Guide to Parties in Mediation

The mediator is professionally trained and independent. His or her sole interest is in helping the parties to find a solution. However, they do not give legal advice or make any decisions or judgments in your case. Your private discussions with the mediator from the moment that you were first contacted will be treated as completely confidential and will not be disclosed to the other side without your express approval. Furthermore, all discussions with the mediator or the other party will be ‘without prejudice’, which means that nothing said can be referred to in any court action. The mediator will not impose a solution in the event of disagreement between the parties, the mediation will simply not settle.  For a mediation to have the best chance of success, it is important that the parties understand and prepare for the process.  Mediation is a forward-looking process so while there will be a chance to air your grievances at the beginning, directly to the other party, the emphasis will be on finding a solution acceptable to both sides.  As the mediation will be for a limited number of hours, you should think about the following in particular before you start, since they are likely to be points that your mediator will want to discuss with you: 

  1. To resolve the claim sooner rather than later what is your “bottom line” for an acceptable solution?
  2. What are you prepared to live with in order to resolve the case without going to the end of a court process?
  3. What ideas can you put forward that might help resolve the dispute?
  4. What are the other side looking for? What ideas might the other side put forward?
  5. Is there any other service that you could perform/receive as part of a settlement package?
  6. If the case does not settle, what steps will you then have to take in court proceedings; how long are they likely to take?
  7. What further costs are involved? (depending on the outcome in court you may become liable for the other side’s legal costs)
  8. How confident are you that you will win?
  9. What would be the likely outcome/the worst possible outcome?
  10. What are the weaknesses in your case / the other side’s case?
  11. Is there anything that you want to tell or ask the other side, to clear up any misunderstanding? 

As the mediation process is confidential, you can be as frank as you like in what you say in private to the mediator. Be open and honest and be prepared to listen to and think about points made by the other party. Remember that when the mediator brings you information from the other party, he is only acting as a messenger and is not expressing his/her own views.

 

AT THE MEDIATION (IF TELEPHONE)

The parties will have agreed with the mediator on a time when everyone will be available to speak on the telephone; if you also have broadband email, that may also be useful, but it is not essential. The mediator will then speak to one party followed by the other party in complete confidence. Your views will only be passed on by the mediator with your express permission, as the discussion continues.

AT THE MEDIATION (IF FACE TO FACE)

Every mediation meeting is different; however, they are always conducted informally. The mediator decides how best to spend the time available, whether in meeting together, or separately in order to progress negotiations. The mediator’s experience will enable him or her to decide how best to use the time. It is possible to have a mediation without being in the same room as the other party, but this is not to be recommended.

WHAT CAN BE THE OUTCOME OF A MEDIATION

Usually agreement involves some form of compromise. If the mediation is successful,a settlement agreement is prepared for signature on the day. This document will be legally binding, so please make sure that you fully understand the terms before signing; if you have any concerns, these can be discussed with the mediator. If agreement is reached it will also be the responsibility of the parties to inform any Court involved that settlement has been reached and that the case should not progress further. If agreement is not reached, the timetable set by the Court for the proceedings will continue. The Court will not require any information as to what went on during the process because of confidentiality. If the mediation is not successful, it may still be possible to settle the case before trial and the fact that there has been a mediation may make it easier.

IMPORTANT POINTS TO NOTE

Mediation is carried on separately from any Court process that you may be involved in. Courts will often suspend (stay) the proceedings to enable an attempt to be made at mediation. It is your responsibility to check that that has been done; if it has not, it will be your responsibility to ensure that you comply with any time limits that the Court may have fixed, while the mediation takes place.  It is for the parties to decide whether to settle or not; the mediator is there to help you find a solution. It is not his or her job to advise or tell you what you should do. As the mediator cannot give legal or other advice, an unrepresented party will sometimes arrange for a solicitor to be available on the telephone to be consulted if necessary.  If the mediation is successful, it will be your responsibility to comply with the terms of the agreement; MCN Mediation will have no further involvement in your case.