MEDIATION PROCESS

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Mediation is a confidential process where the mediator takes an active role in assisting the parties to work towards a negotiated settlement, but the parties retain control of the ultimate decision to settle and on what terms. It is a flexible process that can be tailored to the specific dispute and allows the interests of the parties and any future relationship to be taken into account. The mediation process typically comprises the following:

It is important that the parties have confidence and trust in the mediator they select. Prior to any appointment, I am happy to speak with the parties to discuss my approach and experience, so that they can decide if I am the right fit for their dispute.  

Following my appointment, I will have a preparation call with each of the parties to agree the practicalities of the mediation, including the format, date, timings, location (physical or virtual) and attendees. I will also discuss the Mediation Agreement, the format of the Case Summary (which is a short written overview of the dispute, outlining the facts, key issues, points of agreement and disagreement) and the supporting documents to be relied upon. In addition, this is an opportunity to address any concerns or questions about the mediation process. 

Following receipt of each party's Case Summary and documentation, I will read into the dispute and prepare for the mediation. Depending on the complexity and size of the dispute, I may have a further preparation call or meeting with each party to understand and explore their views.

The Mediation Agreement is signed by the parties and the mediator usually before and at the latest by the start of the mediation day. This document forms the legal framework for the mediation. It explains that the parties enter the mediation in good faith and that I, as the mediator, will adhere to a Code of Conduct. It also covers the important aspects of confidentiality, authority to settle, mediation fees and confirms that any settlement is not legally binding until written down and signed by the parties. 

The whole mediation is confidential and private, including; the fact that the mediation is taking place; what is discussed and shared by the parties; and the outcome.  However, the parties can agree for information, such as the mediation itself or the outcome, to be made public if this is felt to be advantageous, for example, in the case of positive publicity from the resolution of the dispute. Anything discussed with me as the mediator in the private meetings is confidential and I will not disclose this to any of the other parties without express permission. 

Furthermore, the mediation is conducted on a without prejudice basis, which means that statements made or information shared in an attempt to progress the dispute cannot be relied on by the other party in any future proceedings, unless the information is legally required to be disclosed as part of those proceedings. In addition, as the mediator, there are some rare circumstances where I may have a duty to disclose confidential information to a third party and these are covered in the Mediation Agreement. 

This level of confidentiality is a real benefit of the mediation process. It encourages open communication of each party's interests and allows me as the mediator to help the parties thoroughly explore options for resolution. 

As the mediator, I control the process on the day whilst the parties retain control of what information is shared and ultimately whether or not a settlement is agreed and if so, on what terms. On the day of the mediation, I will first meet each party in private and if they agree, bring the parties together for an Opening Meeting. During this Opening Meeting I will initiate introductions (if required), provide an overview of the mediation process, recapping the important key terms of the Mediation Agreement, and outline the day ahead. Following this, each party will usually make a brief verbal Opening Statement. After these statements, I will facilitate further joint and private meetings to help the parties share information and work together on possible solutions for the dispute. 

The  aim of the mediation is for the parties to reach a negotiated settlement.  Under the Mediation Agreement, this settlement is not binding until it is written down and signed by the parties in the Settlement Agreement. This is another key benefit of mediation as it allows the parties to be creative, explore offers and conduct negotiations without being bound to individual points until the whole matter is agreed. 

Over 70% of commercial mediations settle on the day of the mediation and a further 20% in the following days. If ultimately settlement cannot be agreed on the day, I will discuss with both parties the best way forward, which may include keeping the mediation open for a fixed period of time or in the small number of cases where it looks like settlement will not be possible, to close the mediation.