What is mediation?

Mediation is a way in which the parties to a dispute may communicate with each other using an impartial third party (the mediator) about the ways in which the dispute can be resolved.

It is not a process to decide the dispute. It is an alternative process to enable the parties to resolve the dispute by discussing and negotiating an agreement.

How does it work?

The parties first have to agree to mediation and to a mediator. The agreement is recorded in the mediation agreement which has to be signed by the parties. This sets out the terms under which the mediator will act.

What does the mediator do?

The mediator assists the parties to communicate with each other in a way that enables them to consider and discuss how the dispute can be resolved by agreement.

This may involve a preliminary meeting with each of the parties to discuss their point of view and objectives. This may be followed by a joint meeting with the parties and/or alternatively private meetings with each of the parties. It is common for a mediation to be conducted using a combination of joint meetings and private meetings with each of the parties.

At a private meeting with one of the parties the mediator may discuss the issues which are raised and the risks of litigating the claim. This may include a robust discussion with the party to ensure that it is informed about the issues and risks of bringing the claim when negotiating with the other side.  Anything said at a private meeting remains private and confidential unless the mediator has the party’s permission to disclose something to another party.

The meetings can take place virtually via Zoom or face to face at an agreed neutral venue.

What are the mediator’s obligations?

The mediator must be impartial and independent of the parties. For example, a mediator may not advise a party on the merits of the dispute. However, the mediator may advise both the parties about how the dispute could be resolved but this can only happen with the express consent of the parties.

The mediator must keep any information provided to him by the parties confidential. However the mediator may with the express consent of one party disclose information to the other party.

If the parties reach agreement on how to settle the dispute, the mediator will assist them in recording this in writing so that they can sign a legally binding agreement.

What are the parties’ obligations?

In order for a mediation to take place the parties must first agree to the mediator and to the mediation agreement.

This requires the parties to agree how, where and when the mediation should place i.e. virtually online or face to face; the length of time that is required and the venue if this is required and the date.

The parties must comply with any requests made by the mediator e.g. to provide their available dates or the information on which they will rely.

The parties must each pay their share of the mediator’s fee before the mediation takes place.  

The parties must act in “good faith” in the sense that they must genuinely want to participate in the process with the object of seeking to resolve the dispute.

How long does it take to arrange and carry out a mediation?

The mediation can take place as soon as the parties are ready and they and the mediator are available. For example, it is possible to arrange a mediation to take place within a few days or weeks of a mediator being appointed.

How much does it cost?

The fee required by the mediator will be determined by the value of the dispute i.e. how much is in dispute.

For claims under £50,000 there is a fixed scale of fees. This starts with claims below £5,000 in value where the mediator can provide a mediation online lasting either 1 or 2 hours for a fee of £75 or £125 per party. For higher value disputes, the mediator can provide a mediation lasting up to 4 hours – on online or face to face – for a fee per party of £445. Additional time is charged at £100 per hour per party.

For disputes above £50,000 my fees start at £875 per party for a full day’s mediation (8 hours) and go up to £2,500 per party for disputes involving £1 million.

The parties must share the costs of hiring a venue if this is required.

Why agree to mediation?

Resolving the dispute by mediation gives the parties certainty and control over the outcome of the dispute. Instead of the court making a decision in a judgment which is a public document, the parties can agree terms which suit them and which are confidential.

Settling a dispute by mediation can also be much quicker and cheaper than pursuing a claim through the court. Even a small claim can take over a year from issue until judgment, more complex claims can take years to be tried. Meanwhile the parties have to live with uncertainty and anxiety over the outcome and the cost of litigation.

Settling the dispute means that the parties will save on their own solicitors’ costs and the court fees that will be required and they will avoid the risk of having to contribute to the other side’s costs if they lose.

Advantages

• Speed
• Certainty
• Control
• Privacy
• Avoid winning or losing
• Avoid litigation costs (including the risk of having to pay some of the other side’s costs if they are successful).

Disadvantages

The mediation cannot take place without agreement and co-operation between the parties to the dispute.

This means that they must agree:

• to appoint a specific individual to act as mediator
• the mediation agreement
• how the mediation will be carried out i.e. online or face to face [if value exceeds £5,000]
• the length of the mediation
• the venue, if the mediation is to be face to face

Further information or queries

If you require any more information or if you have any questions please contact me by email rwglaw@gmail.com.