Mediation Explained
The Process and how I use it
What is Mediation?
Mediation is a protected, private conversation in which a neutral third party is hired to accompany you through a process in which your dispute is replaced by a binding settlement agreement. Reaching this outcome means that you enter two agreements: one containing the terms of the process that you will follow with me and another containing the terms on which the dispute is ended.
The process lasts up to one day and you are free to abandon it at any stage. You may or may not reach an agreed outcome, but the success rate is high – at least 80% of mediations end in a settlement. Under the agreed terms of the process, the settlement agreement must be reduced to writing and signed. This makes it legally enforceable as a contract between you and the other person. It prevents that other person from attempting to use the law to revive their original complaint.
You and the other person are free to agree the process for the mediation by signing a Mediation Agreement (you will find an example in the Documents section on this website). This will include the choice of whether I meet with you in person or online, the location of the venue, the fees payable (usually split equally between you and the other person) and other practical details. A fundamental part of the process is its confidentiality.
Confidentiality
Confidentiality explains the popularity and success rate of mediation. It is of particular value to businesses vulnerable to the reputational damage of having their dispute resolved in open court. Like you, I am bound by my duty of confidentiality. I can only divulge information from you to the other person with your permission. I am the only person who knows both sides’ secrets and how far away you are from agreeing a settlement. I am therefore ideally placed to narrow the distance between you.
Confidentiality is partly imposed by you signing the Mediation Agreement. It is additionally imposed by the law of England and Wales. If no settlement is reached and the dispute is litigated to trial, you have a third layer of protection: no communications made during the unsuccessful mediation can be repeated to a trial judge because these are protected by Without Prejudice privilege. This enables you to pursue your full claims at trial, despite having offered to accept less during an earlier unsuccessful mediation. It means you have nothing to lose by using the process.
When should you mediate?
You can bring your dispute to me for mediation at any time after it arises, although the best time will depend on the balance of following:
- You may or may not have instructed solicitors yet. The advantage of going to mediation early is that you will have spent less money (or none) on solicitors’ fees by that stage. Those fees become part of your overall loss and, while solicitors continue to act for you, this loss will rise. The sooner you mediate, the less likely it is that legal costs will be an obstacle to reaching an overall settlement.
- On the other hand, mediating at the first opportunity can be disappointing. You may know too little about what the other person wants from the process to be able to make offers, demands or concessions. If there is a prospect of litigation, you may know so little about the strengths and weaknesses of the other person’s legal case that it is impossible to adopt a bargaining position. If so, mediation will be premature. It will be pointless to pay for my services and venue hire for a mediation that has no prospect of success. In these circumstances I always advise delaying until there has been enough information exchange for the dispute to become sufficiently ripe for mediation. Exchange of information always continues during the mediation process itself, but the participants must first have passed a threshold of sufficient information sharing to make it worth entering the process.
My Role
My role is not to provide solutions to a dispute. The participants know each other far better than I do and each has far superior knowledge of what the other person might be prepared to accept in settlement. However, while not providing solutions, I am in a unique position to enable them to be reached. I do this by taking note of the obstacles you encountered in the past and exploring what each person would find attractive as offers. I can recognise and encourage third-way approaches that have so far been concealed or unimagined. In these ways I have enabled many deeply unhappy people to resolve protracted, entrenched disputes in local government, academia, broadcasting, theatre companies, and business.
What mediation isn’t…
It is a common mistake to think that mediation involves people miraculously putting aside their differences, abandoning grievances and giving up a fight. This is not what happens. People continue to fight hard during mediations, but not to defeat the other person, as would be the aim in litigation. This is because, if well advised, they realise that the process can provide them with value that the justice system cannot (especially when only one side can win).
Mediations can be as tense and as exhausting as any courtroom trial (as former trial counsel I am often reminded of this). People can use mediation to fight very usefully. This is because they are fighting for something better than simply “winning”. They are fighting to obtain as much value as possible, where outcomes are not limited by the narrow powers of judges.
Moving towards settlement
People have many differences. Societies function because people are so good at putting aside their differences, even in the aftermath of war. There is proof of this everywhere, notably in mixed-ethnic Kosovo, where I learned much about conflict management. Differences are only problematic when they escalate to a point where they cannot be tolerated. By helping people to understand what another person cannot tolerate, I use deconfliction techniques to rebuild tolerance or remove the need for it altogether.
How lawyers fit in
Mediation is not a court hearing. Lawyers without an accreditation in Mediation Advocacy make the frequent error of behaving as though they were in court, throwing around legal terminology so that people feel locked out of their own process. Competent mediators do not tolerate this. The law is not irrelevant because it is a useful reminder of what could happen during litigation if a settlement is not reached. But overreliance on it during a mediation is a beginner’s error. Purely law-based outcomes are narrow, inflexible, harder to obtain and often ungenerous. Mediation frees you to seek outcomes which are unlimited in nature and scale, provided they are lawful. Your signed settlement agreement containing these imaginative outcomes is private and belongs only to you.
How the law fits in
It is very easy to litigate. Sometimes it is the only viable way to bring a dispute to an end and for justice to be served. The wish for justice should never be denied to someone who knows they have been wronged. It may be their only means of redress and it is their entitlement to seek it through the court process. But for others litigation is not the only option and is an expensive indulgence that can end badly (typically by losing at trial and being ordered to pay both parties’ legal costs).
You can sue anyone you like and few lawyers will turn down your offer to pay them for their services. Doing so is alluring for people wishing to avenge the behaviour of someone who has made them unhappy. And legal TV or movie dramas teach us (often wrongly) that the good guys always win. What about good lawyers? Will they encourage you to use the court system?
Often they will not. They will encourage you to use mediation. Why?
Good lawyers follow their professional code. This insists that lawyers act in your best interests. The following factors are then relevant:
- If the prospects of success at trial are weak, the risk of losing and suffering a bill for legal costs is high. They must then discourage you from litigating.
- Even if you win at trial on a money claim, you may emerge from litigation with no money at all because your conduct of litigation resulted in costs orders against you that wipe out your winnings.
- If a trial judge takes a view that the dispute could have been settled without the need for a trial there may again be an order that all the costs be paid by you, regardless of whether you won.
To avoid these disastrous outcomes the rules of the justice system contain warnings that attempts at settlement are expected by all judges. Aside from settlement methods built into the rules themselves, mediation is the commonest process by which judges expect litigants to explore settlement. Some cases are even automatically referred to a court-based mediation process. Judges have power to order litigants to attempt settlement and to provide good explanations when no settlement is reached.
In other words, the option not to attempt settlement has been largely removed. If you are determined not to attempt settlement you will have to persuade a judge that you are correct in your view. If a dispute is not settled in a mediation it may nonetheless be narrowed, which will often be enough to satisfy a judge that your efforts were sufficient. Any trial on the remaining issues will now be shorter, cheaper and less of a drain on the civil justice system. A good lawyer, especially one accredited in Mediation Advocacy, will guide you through all of this as part of their duty to serve your best interests and save you money. In this way mediation improves society.
For finer detail and guidance on the mediation process please refer to my Briefing Note here.
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