Mediation is a cost effective way of resolving differences. The cost is usually substantially less than going through a court hearing.
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Why not just negotiate?
If you can negotiate with the other party/parties then do. This is the best way of resolving disputes.
But if you feel that the negotiation is unbalanced (one party is dominant); or expectations or demands are unrealistic; or there is a breakdown in trust; or simply if negotiation has got nowhere, then mediation may be a helpful next step.
If you do mediate, you will find that having a trained third-party neutral adds a different dynamic to the negotiation. The mediator can ask questions or make points to the other party that you might not want to. By not being personally involved in the dispute, he/she can ensure that the negotiation works through an agenda going from ‘ how did we get into this situation, whose fault is it? And moves to ‘how are we going to move on?’
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What does mediation cost?
For smaller claims in the £5,000 to £15,000 range the cost could be £250 per party (+VAT) for a three hour mediation.
For complex or higher value cases or cases involving several parties, the mediator fees can range between £1,000 to £5,000 (+ VAT) a day to be spilt between the parties.
See ‘ What does mediation cost?’ on this website for more detail.
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What are the outcomes of mediation?
Between 75-80% of mediations reach a settlement either at mediation or very shortly afterwards.
Settlement could include an agreement to pay money; an agreement to stop a particular course of action or to take a particular course of action in future; an apology; an agreement to replace goods or services; or a wide range of other outcomes.
If settlement is reached it is recorded in a written settlement agreement at the mediation. This creates a new contractual agreement between the disputing parties. If the dispute is already in the course of litigation, a mediated settlement agreement can be registered with the court through a Consent Order or a Tomlin Order.
In the unlikely event that one or more parties fails to adhere to the written settlement agreement, then action can be taken by the other party/parties to enforce the settlement agreement reached at mediation without having to go right back to the original causes of the dispute.
In the event of mediation not reaching settlement, then the parties are free to continue dialogue, or to go to arbitration or litigation. Because of the confidential and ‘without prejudice’ nature of mediation, nothing that was raised at mediation can be brought to a subsequent arbitration or court hearing unless it was already in the open between the disputing parties.
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How quickly can mediation be arranged?
Mediation can be arranged at just a few hours notice.
In practice, we recommend that some time is taken to prepare for the mediation (see ‘Guidance for clients preparing for mediation’ and ‘Guidance for solicitors preparing for mediation’ on this website). On average it is probably about two-three weeks between an initial enquiry and the mediation taking place. The most usual problem is getting the appropriate people in the same place at the same time.
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What if the case is already in litigation? What is the attitude of the courts towards mediation?
The courts both recognise and encourage mediation. The Civil Procedure Rules introduced in 1999 encourage active management of cases including “encouraging the parties to use an alternative dispute resolution procedure if the court considers that to be appropriate….” [CPR1.4 (2)(a)]. Courts have now become familiar with mediation, which is the most common form of alternative dispute resolution. Courts will almost always grant a stay (a delay of the court hearing) to allow mediation to take place. Judges have the power to recommend that mediation be considered if they think it is appropriate. Parties may be asked to explain to a judge why they have not mediated. If a case is not settled at mediation and subsequently returns to the court, the court has no right to enquire what happened within the mediation, they respect the confidentiality of the mediation process. If one party suggest mediation and the other party refuses, in some circumstances the refusing party may be penalised in costs even if they win the subsequent litigation.
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Isn’t proposing mediation a sign of weakness?
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Does mediation mean more expense?
No invariably mediation will be considerably cheaper than a court case. If you use a lawyer, you will have to pay for him/her to prepare for the mediation and to attend. But the majority of that work (and considerably more) would be necessary if you were to go to court. The mediator will also need paying, but these fees are usually quite low in proportion to the amounts in dispute (see ‘What does mediation cost?’ on this website).
More importantly, mediation can be arranged at only a few days notice. Independent surveys show that the most significant cost of disputes is not the payment to lawyers for sorting it out. Rather it is the worry for those involved, the distraction from their day-to-day work, the cost in morale and possible reputation. Mediation offers a speedy, flexible and cost-effective way of resolving these matters.
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Do I have to have a lawyer at mediation?
It is not necessary to have a solicitor to represent you at mediation. Many small value cases are resolved with just the principles attending mediation.
But in higher value and more complex cases a lawyer is often present. If your lawyer is not present, then you can consult him/her on the telephone while you are in mediation. The most important factor is to bring to the mediation someone who has the authority to settle the matter.
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Who should attend the mediation?
There are no fixed rules about who can/cannot attend a mediation. However, it is important that someone attends who has the authority to settle the matter.
Lawyers are quite often present, but aren’t always. You are free to bring whoever you feel will be helpful in the negotiation. For example a chartered surveyor or an accountant may be just as important as a lawyer in some types of dispute. But these types of professional are not always necessary. As an example, in one mediation between a married couple and a bank, the couple brought their vicar because they felt he would help keep them calm through the day. He did and the problem was settled.
As a guide, bring someone who understands the matter in dispute, someone who has authority to settle, and the advisers you consider necessary. Experience shows that the fewer people there are around the table, the higher the chances of settlement. When you are in mediation, it is perfectly acceptable to reach your advisors by telephone if they are not physically at the mediation meeting.
This question of who attends is one you should talk through with a mediator before the mediation takes place.
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Where does mediation take place?
At a mutually convenient venue. Ideally (in a two party mediation) there should be three rooms – one for Party A, one for Party B, and a joint room where all can meet. It is essential that each party have their own room. The majority of mediations take place in the offices of a solicitor representing one of the parties, but other neutral locations are perfectly suitable such as a hotel. In some cases, location can really help the parties get through what might be a stressful day.
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Who are the mediators?
All the Solent Mediation Group mediators are accredited and registered with one of the principal national mediation bodies. This means that they have gone through formal training, and also undergo a programme of continual professional development monitored not only by Solent Mediation Group, but also by their accrediting body. All carry appropriate professional indemnity insurance and are subject to Codes of Conduct that cover, for example, their duty of confidentiality. The Solent Mediation Group also has its own Code of Conduct.
The majority of accredited mediators are solicitors or barristers, but a number come from other professional backgrounds and other disciplines. It is a myth to believe that only lawyers can be mediators; a mediator remains neutral and will not pass opinions on the legal merits of the matter in dispute.
Whether or not you use Solent Mediation Group, we urge you to use a properly trained and accredited mediator.
A brief biography of each of the Solent Mediation Group mediators is available at ‘Our mediators’ on this website.
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Who chooses the mediator?
This is usually a matter of mutual agreement. If parties cannot agree on a mediator, Solent Mediation Group will appoint a suitable mediator if mandated to do so.
The question is often asked, should the mediator be a specialist in the matter in dispute? The answer is no. It is more important to have a mediator who is trained and skilled in the mediation process. Because the mediator does not make judgements or give legal opinions on the matter in dispute, it is the parties who have the underlying knowledge of the problem and who are encouraged through mediation to reach their own resolution.
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Why do I need a trained mediator?
There is a myth that any articulate person, or person experienced in, say, business, can act as a mediator. After all, it is only negotiation. You might be lucky, but you might not.
Trained mediators are used to dealing with emotion and anger. They understand how to structure a process that will help dialogue and constructive exchange of information. They will test and discus options. They recognise, understand and know how to use positively a range of negotiation techniques. They have experience in how to move a dialogue onwards and techniques to ensure balance in that dialogue.
Most importantly, mediators trained by the main mediation bodies are professionally bound to adhere to codes of conduct that guarantee their neutrality and bind them to duties of confidentiality. They also carry professional indemnity insurance.
Every mediator within the Solent Mediation Group is not only trained, but is highly experience and has a high rate of settlement in the mediations they have handled.
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Are there disputes/cases that shouldn’t be mediated?
Yes. There is no need to mediate if you and the other party/parties are able to resolve the problem through dialogue.
Mediation is not appropriate if you need injunctive relief. For example, if you wish to arrest a ship, or take out an injunction to stop something being published, don’t mediate. Go to the court. But once you have taken that injunctive relief then you could mediate the underlying issue that necessitated the injunction.
Neither should you mediate if your objective is to establish legal precedent.
If you feel that the other party has no intention of settling under any circumstances, then again, you may be better off going to court (but take legal advice).
Mediation is a very flexible process that can cope with the vast majority of situations, but if you have doubts about the appropriateness of your situation for mediation, then talk it through with Solent Mediation Group on a confidential and no obligation basis.
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What is the difference between mediation and arbitration?
An arbitrator hears evidence from the parties (sometimes this is through a written submission) but does not usually allow discussion. Legal representation is necessary in arbitration. Having heard the evidence, the arbitrator then makes a decision based on legally based factors. The decision is usually binding on the parties.
A mediator does not make any decision that is binding on the parties. The outcome is in the hands of the parties and is not imposed on them by a third party. The neutral mediator facilitates dialogue between the parties to the dispute, but the parties themselves make a decision to settle or not to settle. Lawyers are not necessary for mediation (but are often used). Mediation is based on legal, commercial and other factors rather than only focussing on the legal strengths and weaknesses and wide-ranging discussion is encouraged within the mediation.
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