What is mediation?
Mediation is:
• a form of what has become known as 'alternative dispute resolution' or ADR; and
• a structured process of voluntary and confidential negotiation carried out with the assistance of a neutral third party in the form of the mediator.
What are the principal features of court or arbitration proceedings?
The judge or arbitrator decides and declares the parties' legal rights after hearing the parties' submissions. The court judgment or arbitrator's award is enforceable by further legal processes if that proves necessary. Court proceedings are normally in public and the judgment delivered at their conclusion is publicly available. In contrast arbitration proceedings and the award made at their conclusion are private and confidential.
How does mediation differ from court or arbitration proceedings?
The mediator's role is:
• to assist the parties to resolve their dispute; but
• not to impose a resolution on the parties.
The mediation process is conducted on a confidential and ‘without prejudice’ basis. Any settlement agreement reached is also private and confidential (assuming that the mediation agreement imposes such confidentiality).
Any resolution of the dispute does not have to be based exclusively on the parties' legal rights. The settlement agreement can also (and frequently does) reflect the parties' commercial interests and future relationships.
Are there fixed procedures to be followed at the mediation?
No – mediation is a flexible process with no fixed procedures. However, the format generally adopted tends to be along the following lines:
• there is an opening joint meeting (the plenary session) at which each party briefly sets out its position;
• there are then a number of private meetings between the mediator and the teams representing the parties;
• there is scope for further joint meetings if that proves appropriate; and
• if the dispute is resolved, a written agreement embodying the terms of the settlement is drawn up and signed.
Who should attend the mediation?
Whilst there are no set rules dictating attendance, it is necessary that someone is available to authorise any proposed settlement terms. It is preferable for such a decision-maker to be present at the mediation. However, there is no reason why he or she should not be available to give then necessary authority by telephone or even e-mail.
There is no necessity for the parties to be legally represented, although this might well be appropriate where:
• the parties intend that any settlement should (at least in part) reflect their legal rights; or
• court or arbitration proceedings are about to be or have already been commenced.
Where the dispute involves contentious factual or expert evidence issues, it might well be appropriate for (some or all of) the parties' factual and expert witnesses to attend.
It is generally regarded as being desirable that:
• one person attending for each party should be designated that party's ‘lead negotiator’; and
• that person was not intimately involved with the subject matter of the dispute (so as to bring a measure of ‘objectivity’ to the negotiations).
How long does a mediation last?
One day is usually set aside for the formal mediation meeting. However, it is not unknown for two or even three days to be reserved for particularly large and complex commercial disputes. Another way of putting it is that the mediation process:
• begins as soon as the parties agree that there should be a mediation; and
• ends when a settlement is reached or all parties recognise that a resolution to their dispute cannot be negotiated (both of which might well be after the mediation meeting).
What is the success rate?
CEDR Solve (the leading independent commercial ADR provider in Europe) indicates that for commercial cases 75% settle on the day of mediation or shortly thereafter.
Please note: These key points are only intended to give general guidance and are no substitute for specific legal advice on any given situation.