Introduction
This element explores mediation.
Mediation is a confidential process intended to facilitate the resolution of disputes through
the medium of an impartial third party – the mediator. Generally, each party (usually with
legal representatives) will be present in the same location but in different rooms. The
mediator will move between the rooms delivering settlement offers and guiding each
party to reflect on those offers, its own position, and the alternatives to reaching an
agreement. The mediator has no authority to make any decision which is binding on the
parties. In the event that mediation does not end in an agreed resolution, the content of
the mediation will remain confidential and will not be made known to the court (although,
unless the parties agree otherwise, the court can be told that a mediation has taken
place).
,Advantages
Mediation can be quick and cheap and most mediation will only require one day. The
costs savings are clear. The whole process is subject to 'without prejudice' privilege. Any
substantive discussion in mediation cannot therefore be referred to in litigation or
arbitration proceedings.
The settlement discussions can be tailored towards the client's individual needs and are
not constrained by the limits of the court's authority. The focus of the process is upon the
interests of the parties rather than their legal rights alone. Thus, factors such as
business relationships, reputational issues or personal emotions can be taken into
account as necessary. This means that the process can assist the parties in maintaining
a commercial or personal relationship.
Clients often prefer mediation to litigation as there is a greater opportunity to get involved
in the process and have their say. The primary aim of mediation is to help the parties
arrive at their own decisions regarding the disputed issues. For mediation to work, the
parties are therefore required to be committed to the process, and those with authority to
settle the case must be in attendance on the day of mediation.
, It is important to understand that mediation may not result in a binding resolution unless
both parties agree. However, even when mediation is 'unsuccessful' in that a settlement
is not achieved at the mediation itself, the process will always provide an opportunity for
the parties to focus on the issues in dispute, assess the true risk relating to costs and
provide an opportunity to re-establish lines of communication with the other side which
often break when a dispute escalates.
Disadvantages of mediation
Whilst there are many positive factors in favour of mediation as a dispute resolution
procedure it is worth noting that there are also a number of potential disadvantages.
Clients are sometimes concerned that an offer to mediate may be seen as a sign of
weakness. Whether or not an offer is interpreted this way depends very much on the
context in which the offer is made.
Clearly mediation involves time and expense.
This element explores mediation.
Mediation is a confidential process intended to facilitate the resolution of disputes through
the medium of an impartial third party – the mediator. Generally, each party (usually with
legal representatives) will be present in the same location but in different rooms. The
mediator will move between the rooms delivering settlement offers and guiding each
party to reflect on those offers, its own position, and the alternatives to reaching an
agreement. The mediator has no authority to make any decision which is binding on the
parties. In the event that mediation does not end in an agreed resolution, the content of
the mediation will remain confidential and will not be made known to the court (although,
unless the parties agree otherwise, the court can be told that a mediation has taken
place).
,Advantages
Mediation can be quick and cheap and most mediation will only require one day. The
costs savings are clear. The whole process is subject to 'without prejudice' privilege. Any
substantive discussion in mediation cannot therefore be referred to in litigation or
arbitration proceedings.
The settlement discussions can be tailored towards the client's individual needs and are
not constrained by the limits of the court's authority. The focus of the process is upon the
interests of the parties rather than their legal rights alone. Thus, factors such as
business relationships, reputational issues or personal emotions can be taken into
account as necessary. This means that the process can assist the parties in maintaining
a commercial or personal relationship.
Clients often prefer mediation to litigation as there is a greater opportunity to get involved
in the process and have their say. The primary aim of mediation is to help the parties
arrive at their own decisions regarding the disputed issues. For mediation to work, the
parties are therefore required to be committed to the process, and those with authority to
settle the case must be in attendance on the day of mediation.
, It is important to understand that mediation may not result in a binding resolution unless
both parties agree. However, even when mediation is 'unsuccessful' in that a settlement
is not achieved at the mediation itself, the process will always provide an opportunity for
the parties to focus on the issues in dispute, assess the true risk relating to costs and
provide an opportunity to re-establish lines of communication with the other side which
often break when a dispute escalates.
Disadvantages of mediation
Whilst there are many positive factors in favour of mediation as a dispute resolution
procedure it is worth noting that there are also a number of potential disadvantages.
Clients are sometimes concerned that an offer to mediate may be seen as a sign of
weakness. Whether or not an offer is interpreted this way depends very much on the
context in which the offer is made.
Clearly mediation involves time and expense.
