What is Mediation? | Davis Blank Furniss Solicitors

Mediation is a confidential and voluntary process by which parties seek to resolve a dispute with the assistance of an independent and neutral third party without the need to issue court proceedings (or proceed to a trial if court proceedings have already been commenced).

Usually, the neutral third party (known as the ‘mediator’) is agreed and appointed jointly by the parties and it is their role to guide the parties through the process and facilitate the negotiation of a settlement agreement.

The mediator does not act as a judge and will not impose a decision or finding on the parties.

It is estimated that around 85% of cases settle at mediation, making it one of the most effective forms of alternative dispute resolution. It is also generally much cheaper and faster than court proceedings.

mediation session

What happens at a mediation?

The format of mediation depends very much on the parties. It is flexible to suit the needs of the parties and the circumstances of the dispute.

A mediation often takes place over one day (8 hours) but they can be longer or shorter. They tend to overrun as party offers come closer together towards the end of the day.

The level of interaction between the parties can vary. If one party does not want to meet the other party (which is very common) then there will be no direct contact between the parties.

Generally, on the day of the mediation, the parties will attend the mediation with their legal representatives and will be placed into their own room. Each party has a separate room – so there is no direct contact with the other party.

The mediator will have an initial discussion with each party (in their separate rooms) to:

  • explain the process so the parties know what to expect from the day;
  • make sure they understand the party’s case and identify any potential areas of agreement; and
  • give the parties an opportunity to make their position clear to the mediator.

Representations for each party will usually be given by their legal representation (solicitors and/or barristers) rather than the parties themselves. It is common for the parties to submit what is known as a ‘position statement’ to the mediator ahead of the mediation, which tends to set out a brief background of the dispute and the party’s position.

The mediator will then go between the rooms, presenting each party’s offers and justifications for the same to the other party, and returning with the response from the other room. Usually, the mediator will go back and forth and multiple offers will be made by both parties before an agreement is reached.

Sometimes, if the parties wish, there will be a meeting with all parties present (both sides and the mediator in the same room). However, this is not necessary and parties can undertake an entire mediation without ever seeing one another.

If the parties are able to reach a settlement agreement, the parties’ solicitors will draw up a legally binding settlement agreement to be signed by the parties at the mediation.


Is mediation compulsory?

Generally, mediation is not compulsory. It is a voluntary process embarked upon by the parties in the interest of resolving the matter without the need to resort to court proceedings. Having said that, there can be serious cost consequences for unreasonably refusing to attend a mediation and so it is important to seriously consider any proposal to mediate by the other party.

Furthermore, on 26 July 2022, the Government unveiled plans for a new scheme of compulsory mediation for claims less than £10,000.00 (known as small claims). Parties involved in claims for less than £10,000 will be automatically diverted to a professional mediator, who will oversee a free hour-long telephone mediation session. The claim will not be allowed to progress to a hearing until the parties have engaged in the mediation.

Under these new proposals, it is hoped that up to 20,000 cases each year can be settled outside of court, at no additional cost to the disputing parties. This in turn will free up judicial hearing time, and help to ease the backlog of claims that have progressed to the hearing stage. It will also mean that the waiting times for more complex claims will be reduced.

It will be interesting to see what impact this new scheme has on the court process for small claims – both positive and negative.

If you are involved in a dispute and would like professional legal advice, please give our office a call on 0161 832 3304 and ask to speak to a member of our Dispute Resolution team.

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