Alternative dispute resolution (ADR) has become increasingly popular in recent years – not only because it offers greater privacy to the parties involved but it is often a quicker and more cost effective way of resolving disputes. Particularly in the wake of the pandemic, alternative dispute resolution methods (mediation, arbitration etc.) have flourished where traditional Courts and Court processes have suffered as a result of lockdown.
What is mediation and why should I choose it?
Mediation is the most common form of ADR. It usually involves the parties sitting in separate rooms with their lawyers, and an independent person (the 'mediator') shuttling between them discussing the parties' positions and communicating settlement offers. To be clear, the mediator does not make the decision – their primary objective is to assist the parties in reaching their own agreement.
Mediation can be a great means of settling a dispute without a protracted Court battle, with all parties taking the time to consider various options and coming to a suitable conclusion. This has both time and cost benefits for both parties, and you may find that your dispute is settled on much more favourable terms.
Of course, every case is different and you should always take advice on the right litigation strategy for your unique situation. But, generally speaking, here are our top 10 tips for mediation:
1. Suggest mediation
The Courts have said that if a party refuses or ignores an invitation to mediate, there can be cost consequences, ie the Courts may order that the refusing/ignoring party bear (part of) the inviting party's costs. So why not be the party to suggest mediation? If the other side refuses, you can bring the situation to the Judge's attention. If they agree, it is a good opportunity to explore settlement.
2. Check your spelling
Don't make a typo and suggest meditation. Although it may do the parties a world of good!
3. Choose your mediator wisely
Anyone can be a mediator, but it is sensible to choose someone who is respected by all parties and considered to be neutral. Someone with a good track record of facilitating settlement can also instil confidence in the process.
One of a mediator's key roles is to test all the party's arguments, therefore it is helpful if a mediator is experienced in the relevant area of law. There is no register of trust and probate mediators in England & Wales, but most lawyers will say on their web profile if they are an accredited qualified mediator.
4. Offer to host the mediation
It is possible to mediate remotely, as has been proven quite successfully during the Covid-19 lockdown! If choosing to mediate remotely, we strongly recommend using video conferencing facilities where possible, as it can make a big difference seeing the other parties' facial expressions. Many video conferencing providers have a facility for breakout rooms and enable the mediator to easily join and leave groups, so there shouldn't be the need to log in and out. Just make sure everyone has a reliable internet connection.
If mediating in person, a neutral venue is often preferred, but the hire costs can be significant. If your solicitor's offices can accommodate a mediation why not get them to host? You will need separate rooms for each party, a place for the mediator and, possibly, a room large enough for everyone to come together. This will also mean you're not paying for your lawyer's travel time.
5. Consider a plenary session
Most mediators will offer parties the opportunity to come all together at some point(s) during a mediation. This is known as a 'plenary session'. It is not compulsory, so if you don't feel comfortable with the idea – you can say no. But a plenary session can be a good opportunity to set the tone for the day. Also, it can give parties an opportunity to say their piece, especially if all correspondence to date has been through lawyers.
If you do decide to have a plenary, write down what you want to say beforehand and don't go off script!
6. Have a floor and ceiling in mind
Before a mediation, it is worth thinking about the maximum or minimum you would accept. The day of a mediation can be an emotional rollercoaster and it is good to have set your parameters beforehand, when you perhaps have more clarity.
7. Get all necessary advice beforehand
Almost all settlements will have tax consequences and they can have a big impact on the value of a settlement, so don't ignore them.
There may be other consequences to consider as well. Take the time to consider them with your advisers beforehand and make sure any advisers not in the room with you on the day know that you may contact them, so they keep their phone with them. Also, mediations can last well into the evening, so ask for out-of-hours contact details as well.
8. Pre-draft your settlement agreement
If a settlement is reached, make sure all parties sign a settlement agreement before leaving. If it is late in the day, everyone will be tired and hungry, and that is not the time for drafting a settlement agreement from scratch. So draft as much as possible in advance. Remember to bring a laptop and charger with you to the mediation – and make sure there will be access to a printer.
9. Don't expect the other side to have a change of heart
Whatever you say or do during the mediation, it is highly unlikely that you will be able to bring the other parties around to your way of thinking, so don't start out with this intention. See the mediation as an opportunity to bring the dispute to an end by all parties moving towards each other. The best mediations are usually those where all parties go away feeling equally hard done by!
10. Get a good night's sleep and bring snacks
Mediations can go on for a long time. Even if you fix an end time, ie it must end at 3pm, it is common for it to take several hours before someone makes the first offer, and several hours in between offers and counteroffers too. Get a good night's sleep the day before, and come with snacks and a book. Also, when there's nothing going on, let your lawyer step out of the room to do other clients' work. It will mean you're not paying them to sit around!
Whatever solution you choose to resolve your dispute, make sure you are well informed and seek professional advice at an early stage. There are often many options available in dispute resolution and it is important to consider all the options first and ensure you have the right strategy for your unique situation.
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.