Barton Legal's Guide to Mediation
Mediation is often made more complicated than it needs to be. This article is a simple guide of what Mediation is, and how best to prepare for it.
Mediation is a form of Alternate Dispute Resolution in which parties agree to attend a without prejudice meeting in an attempt to resolve their dispute. The day is moderated by a Mediator, who is a neutral and independent party, and can help the parties navigate towards a settlement.
At Barton Legal we advise our clients to mediate as early on in proceedings as possible for the below reasons:
- It saves incurring the costs of litigation, which is notoriously expensive;
- It saves the client from taking on additional stress and worry;
- It can lead to a quicker resolution than litigation, which can take months if not years to get to trial.
How is Mediation initiated?
Mediation is simply initiated by one party inviting their opposition to a Mediation. This can happen at any stage in proceedings, but it is beneficial to mediate as soon as possible.
Once the parties have agreed to mediate, a Mediator must be agreed. The initiating party will often be responsible for compiling a list of Mediators and their CVs for the other side to consider. This is not usually a complicated stage, but it is not entirely uncommon for parties to struggle to come to an agreement on a Mediator.
The next step is to agree on a date and venue for the Mediation to take place. It is important to consider the convenience of the date and location when agreeing this. When we are involved in a Mediation, we prefer to use a neutral venue, such as a Barrister's Chambers or a general meeting space. It can often be daunting for a client to attend the office of the other side's legal representatives.
The final step is to sign the Mediation agreement. Once this is signed, the parties are locked in, and if for any reason a party defaults, costs consequences will come into play.
How do I prepare for Mediation?
Although Mediation does not carry the same deadlines and requirements as litigation or arbitration, there are still deadlines and requirements that must be complied with.
- Draft a Mediation Position Statement
The position statement is usually drafted by the solicitors, or by counsel, depending on how complex the dispute is. The purpose of a position statement is to explain the parties' arguments, so each party is clear on the arguments being put forward heading into the Mediation. The purpose of a position statement is not to prove a party's case.
- Agree a Mediation Bundle
The parties are required to agree and produce a Mediation bundle. The bundle should consist of documents that the parties think the Mediator should see before the Mediation, and that would help them to get to grips with the dispute. It is important not to overload the bundle, as this can make it easy for crucial information to be lost in a mass of irrelevant information.
The bundle usually consists of key documents, such as contracts, agreements and important correspondence. However, it is important to note that, just because documents are not included in the bundle, this does not mean that you cannot bring attention to that document during the Mediation.
- Other Preparation
- There are many other tasks that are important in contributing towards a successful Mediation. It is common practice for the Mediator to host a pre-Mediation meeting with each party. This is the first opportunity you will have to make an impression on the Mediator, so it is important not to bombard them with information or stories about what the other side have done throughout proceedings. Use this meeting as an opportunity to introduce yourself to the Mediator and make a positive impression on them.
- We find it useful to have pre-Mediation meetings with our clients and their wider teams (if applicable). If counsel and experts are involved in the Mediation, which is common in construction and engineering disputes, it is important that they are clear on their instructions for the Mediation, i.e. points that you would like to be emphasised, points you do not wish to concede on, and your ideal settlement figure.
If everybody is on the same page, you are increasing your chances of the Mediation running smoothly.
Important things to consider
- Mediation does not guarantee a settlement. Sometimes, the parties are too far apart in their positions, and a settlement cannot be reached. This does not mean that the Mediation was a waste of time and costs. It will provide you with an insight into their argument (whether strong or weak), and you will have satisfied that the Court that you have attempted to settle the matter before going to trial. The Courts are imposing more obligations on parties to attempt Mediation prior to attending to trial, so it is important to do this as soon as practicable.
- The other side may not agree to Mediation. As frustrating as this will be, you cannot force them to attend.
- Mediation is a confidential process on a without prejudice basis, so anything discussed in the Mediation cannot be referred to in ongoing proceedings.
- Parties will typically bear their own costs in Mediation, so be efficient and do not incur unnecessary costs.
Please note, this article and any accompanying video or presentation are for educational and marketing purposes only. It must not be used for giving advice in any shape or form, and it is not a substitute for legal advice. The author does not accept responsibility for loss howsoever occasioned to any person or persons acting or refraining from action as a result of this material.
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.
