Mediation is a form of assisted negotiation where an independent
third party, the mediator, attempts to assist the parties to
resolve a dispute. Although many former judges are mediators, their
role in mediation is very different. The mediator does not decide
who is right or wrong, but attempts to help the parties to
negotiate an agreement to resolve the dispute. The negotiated
agreement is inevitably something less than what the parties had
hoped for, but in exchange, they have certainty about the outcome
Mediation is a step taken in most commercial litigation, whether
by agreement of the parties or because the Court orders the parties
to enter into mediation. Mediations usually proceed in the
The parties agree to appoint a qualified, respected and
acceptable mediator and agree a mutually convenient date and
Sometimes a preliminary conference is held to agree on a
timetable for preparation (but this is not always required);
The parties provide the mediator with an agreed bundle of the
key documents so that the mediator can understand the issues in
The parties exchange and provide the mediator with position
papers setting out the issues in dispute, their respective
positions on those issues and what outcomes are acceptable.
In approaching settlement negotiations, each party is influenced
uncertainty about the outcome of the dispute or court
proceedings (and how long it will take to resolve);
their assessment about the strength and weakness of their
their attitude to risk and withstanding conflict;
their assessment of the alternatives to settlement; and
the ongoing cost of the dispute and a Court hearing.
Successful negotiation requires finding a compromise. You need
to influence the other party by persuading them to reassess their
view. They must be persuaded that it is in their interests to
change their position.
The litigation team at Harris Freidman Lawyers have
conducted hundreds of mediations. About 80% of mediations we have
been involved in are successful. In our next bulletin we will
discuss how to prepare for mediation in order to make best use of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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