Mediation is a confidential process that allows two parties in dispute to find a solution that works for both of them.
Which types of case are suitable for mediation?
Mediation is suitable for almost all kinds of dispute. We have written specific guidance on
- Money, financial and commercial disputes
- Legal, property and personal
- Employment and recruitment
- Difficult colleagues at work and workplace mediation.
Sometimes a court will require you to have attempted mediation before your case can be heard.
In the case of Cowl v Plymouth City Council  1 WLR 803, which was a dispute in the construction industry, the judge stated
[Mediation is] …. at the heart of today’s civil justice system…. any unjustified failure to give proper attention to the opportunities afforded by mediation, and in particular, in any case where mediation affords a realistic prospect of resolution of dispute, there must be anticipated as a real possibility that adverse consequences may be attracted.”
He also added that the following are not reasons to avoid mediation.
- Mounting legal costs – these are not a reason to avoid mediation, but merely a factor to be taken into account.
- Allegations of professional negligence – these are serious allegations, but can be dealt with as part of an agreed settlement (read our page explaining this).
- Having a watertight case – this is not a reason to refuse mediation.
Arranging the mediation
Do both of us have to agree to mediation?
Yes. Before mediation can start both parties need to agree that they will support the process, and attend in good faith. If one party does not agree then the process cannot start.
Who is responsible for starting a mediation? When should we start mediation?
Either side can instigate a mediation. It can be started at any time, right up to the day of a Court hearing, but we recommend that it is adopted as early as possible.
Where does mediation take place? Is it always in London?
We will need to hire rooms or find a place to hold the mediation (unless we are using online e-mediation). Ideally this should be somewhere neutral.
Richard is based in London and can travel outside if necessary. If the mediation involves a total journey time of more than two hours each way then it might be necessary to charge for travelling time in some circumstances.
Online e-mediation and teleconferencing?
Yes, it is possible to set up mediation. This can be very helpful in certain circumstances, and is sometimes easier to arrange logistically. It can also avoid embarrassment if your situation is very tense or personal. Read more about e-mediation…
What times are available? Can you work evenings/weekends?
When you and the other party are ready to start a mediation we will agree dates and times. Evenings and weekends are certainly possible, and for some people these are more convenient.
What happens on the day of the mediation?
Can I bring a lawyer/colleague? Who else will be there?
If you have a lawyer acting for you then you can ask them to accompany you to mediation. You can also bring a friend, colleague or other person to support you. The other party needs to agree to this, but it is unusual for them to refuse.
If you are part of a partnership or larger group then it is important to have all the key parties present, and they need to be an a position to act and take a decision (this is sometimes referred to as having Authority to Settle).
Two mediators and co-mediation
Sometimes two mediators can be involved in a case, particularly if the dispute is complicated or if the parties cannot agree on a single mediator. When two mediators are involved (this is called co-mediation) they will work together – one mediator doesn’t automatically take the side of one or other party. The two mediators will share information between them. Two heads can be better than one.
Occasionally there can be a trainee mediator present as an observer. You will be notified about this in advance, and if you don’t want an observer to be present you can say so. Observers are bound by the same rules of confidentiality as mediators.
What if I’m too angry to meet the person?
The aim of mediation is to bring two parties together to solve their problems. However some disputes can be very unpleasant and sometimes the two parties prefer to remain apart. We can use different rooms. Or we can use teleconferencing and e-mediation.
Normally the mediation setting begins with all of us meeting in the same room to run through the structure and organisation of the day and to outline what we hope to achieve. After that it is often helpful to have private discussions with each of the parties. What happens after that depends on the progress that is made.
Is mediation confidential?
Mediators are bound by strict rules of confidentiality. They cannot disclose information to anyone outside the mediation (a rare exception to this is if there is evidence of a serious crime such as child abuse). Anything that you say in private remains private, unless you specifically request that it is communicated to the other party. You can talk to a mediator openly and in confidence. Before we start a mediation you will receive a mediation agreement that sets this out explicitly.
If you are able to reach an agreement between the two of you then it is usual to put this in writing, so that there can be no disagreement about what was agreed, before leaving the mediation. This agreement, like everything else, is confidential to the two parties.
Because confidentiality is absolutely central to mediation we have written a full guide to confidentiality.
Will we definitely reach a solution? What if we don’t?
There is no guarantee of a solution when you enter mediation, although statistically you have a good chance – around 80-90%. There is also a good chance that after an unsuccessful mediation you can settle the matter within a few weeks. Sometimes mediation helps you to understand the case better, and it can certainly clarify the areas where you are both in agreement and the areas that remain divisive.
A mediator is not a judge or a government official, and cannot impose something on you. It needs to be a mutually-agreed way forwards.
If mediation doesn’t work then the alternative is usually litigation in court. This can be expensive and can have unpredictable and sometimes unsatisfactory outcomes.
Does mediation weaken my case? What if I don’t like the outcome?
In traditional legal disputes a judge or arbitrator makes a final and binding decision which may not suit one of you and could potentially leave both of you feeling like you didn’t get what you wanted. In contrast, mediation requires both of you to agree the outcome. You can also come to a solution that works for you in the light of your particular priorities – your personal values, goals and fears.
Mediation is safe because it puts you in control. You can stop the process at any time.
Can a mediator offer legal advice?
No. A mediator can not offer legal advice.
How much does it cost? Which one of us pays?
We are very aware of the costs involved in mediation and will do our utmost to use time and resources efficiently.
We can advise you of the likely costs, which are based on the estimated time it will take to resolve the dispute. In addition, there are the costs of room hire and travel (unless we use e-mediation ).
Our costs and terms are laid out on the Fees and Costs page.
All the costs of mediation – professional fees and other expenses – are shared equally between the two parties. The fees must be paid in advance of the mediation commencing.
In the event that the mediation does not produce a settlement then no refunds will be given.
Should we talk or should we listen?
Mediation is all about listening. It is not about stating and restating your case – if that were effective then the case would have been solved by now! Mediation compels both parties to listen to the other side, Sometimes they will tell you exactly what they need to clinch the deal.
What is your Complaints Policy?
We adhere to the European Code of Mediators.
If you are unhappy about the way that your mediation was carried out, or if you feel that you have been treated unprofessionally or disrespectfully then please follow this Complaints Procedure.
In the first instance, it may be possible to resolve the issues informally. If you do not feel satisfied with this then please write (by email or post) giving a clear description of your concerns or complaints, together with your ideas of what should be done to put things right. You should enclose copies of any relevant documents/letters, and should include your full name and address.
Once I have received your written summary of the complaint, you will receive a written acknowledgement within a week and a full formal reply to you within 21 days.
If you remain dissatisfied with this then the complaint will be referred to the Civil Mediation Council. Written copies of all complaints are kept.