UK: Mediation -- A Beginners Guide

  1. Introduction

Business disputes are a hazard most companies wish to avoid or resolve speedily. They have a negative impact on day to day basis activities because of their cost in both seeking external advice and "locking-up" valuable management time.

Mediation provides an opportunity to settle disputes both speedily and in a cost effective manner.

This article seeks to provide a guide for beginners on how mediation operates in practice.

  1. Referring A Dispute To Mediation

There are two major mediation service providers in the UK. CEDR (The Centre for Dispute Resolution) and the ADR Group have trained their own mediators over the last ten years and either organisation can be used at the beginning of the mediation process.

Normally the parties to a dispute will agree between themselves (or via their legal advisers) that the matter should be referred to mediation and then one (or both) of the parties (or lawyers) will contact CEDR or the ADR Group. Alternatively one party may approach either CEDR or the ADR Group direct and ask them to contact the other party and suggest that the dispute may be appropriate for mediation.

CEDR or ADR Group will then either suggest an appropriate mediator or provide a choice of three or four possible mediators. They will enquire about the nature of the dispute and propose a mediator or mediators with suitable experience and expertise.

ADR Group mediators are all lawyers. CEDR mediators can be from any professional background (eg lawyer, accountant, surveyor, architect, engineer etc).

Once both parties have agreed upon a mediator either CEDR or ADR Group will then organise the mediation and deal with the logistics of liaising with the parties over issues such as the venue, the date and the written submissions by the parties.

Each party is asked to prepare a short briefing note or case summary on their case (this should not normally exceed two sheets of A4). Any vital documentation should be attached. A chronology may also be prepared.

Approximately one week prior to the mediation a copy of the document will be sent to CEDR or the ADR Group, the mediator and the other party to the dispute.

Shortly before the mediation the mediator may telephone the parties to discuss any questions they may have about the process and may deal with logistical matters. He will also ask who will he attending and ensure both parties are represented by a person with authority to settle the dispute.

  1. The Mediation

On the day of the mediation the parties arrive at the designated venue. The mediation will normally begin at approximately 9.30 am and will carry on throughout the day until a settlement is reached. It is unusual for a settlement to have been reached by 5.00 pm and often mediations will carry on late into the evening although a recent growing trend is for the mediator to set an initial deadline for the parties to work towards.

The proceedings with the mediator and both parties and their advisers attending a joint session in the mediator’s room.

The mediator will begin by introducing himself and asking the parties to introduce their team. His aim is to put the parties at their ease to create an atmosphere conducive to co-operation.

He will then explain the process. The process is confidential and any matters revealed during the mediation are disclosed on a "without prejudice" basis and cannot be referred to later should a settlement not be reached and the matter proceed to Court. Any information given to the mediator will remain confidential unless a party gives him permission to disclose it to the other side. The mediator will also point out that he cannot be called to give evidence at trial should the mediation fail and the matter proceed to litigation.

The mediator will ask the parties to sign a mediation agreement which will have been prepared by CEDR or the ADR Group. This sets down the parameters within which the parties must operate.

In addition he will explain that the process is voluntary and either party can walk out at any stage. If the parties do not reach a settlement they are free to depart and the dispute will continue with (possibly) further negotiations later or litigation.

He will explain the format of the mediation which will involve an opening joint session with all parties present and then separate "caucus" meetings between the mediator and each party. He will also emphasise that the aim of the mediation is to reach a settlement.

He will then explain his role which is to manage the process, to be neutral and to facilitate a settlement. He will explain each parties role and stress that it is their dispute and they "own" it. It is for them to settle the action. Nobody else can do so.

He will ask each party not to interrupt the opening statements during the joint session. He will double check that there is somebody present from each side with authority to settle the dispute and he will also ask whether any previous offers have been made. He may ask for details of the costs incurred to date.

He will then check whether the parties understand what he has explained and ask whether they have any questions.

The opening address by the proposed claimant will last ten to fifteen minutes without interruption.

The opening address by the proposed defendant will then follow.

One further aspect of the opening joint session which is important to emphasis is that the parties have the right to explain their case in their own words and vent their own feelings if they wish to do so.

After the opening sessions the mediator will ask the parties to "break" into private caucuses. This will involve each party retiring to their own room. They will remain in that room for the remainder of the day unless a further joint session is called.

The mediator will then begin by meeting with the proposed claimant. He will discuss and explore the issues involved, "test" their case, establish whether there is any common ground, and explore whether it is possible to bring the parties together. He will then carry out the same process with the proposed defendant and ultimately "shuttle" between each party as the day progresses.

At some stage during the day the parties may be called together if they are very close to settlement to thrash out a deal. Alternatively any expert witnesses or lawyers may he asked to meet separately.

If a settlement is finally agreed between the parties it will be set out in writing in an agreement (if there is no current litigation) or a consent order (if litigation has been commenced) and the matter will be settled. The agreement will be binding.

The process is extremely flexible and can encompass global issues between the parties such as their present business relationship and future business opportunities and any other disputes that are ongoing between them.

There can be no guarantee that the process will achieve a settlement but statistics show that it is highly effective and usually succeeds in helping resolve the dispute.

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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