Mediation FAQs

Hopefully, the following Frequently Asked Questions will provide answers to some of your questions about the mediation process. Click on the Questions to open and close the Answers.

If you have any further questions about mediation, please do not hesitate to get in touch.

What is mediation?
Mediation is the most popular form of Alternative Dispute Resolution ("ADR" – see below). The purpose of mediation is to achieve a facilitated negotiated settlement. It is a voluntary, non-binding, private dispute resolution process in which a neutral person helps parties to reach a consensual solution to their dispute.

The mediator is a specially trained neutral facilitator who uses a range of techniques to help parties negotiate a mutually acceptable outcome to their problem.
Why do parties mediate?
Litigation, arbitration, adjudication, expert determination and Ombudsman services are all adversarial processes, where parties present their cases to a decision maker who will decide who is right and who is wrong. Very rarely can parties be guaranteed success in these processes. A high proportion of cases listed for a final hearing settle “at the doors of the court” after the parties have incurred the high cost of preparing their cases.

Negotiations between parties without an independent mediator frequently become very adversarial. Settlement is often only attempted when one party feels they have the upper hand in the litigation, arbitration or adjudication. These negotiations tend to reinforce polarities rather than challenge them as parties seek to justify their own case. Parties also tend to assume that they understand the other side’s position, but often they misjudge what their opponent needs from a deal.

A skilled mediator will focus the parties away from the problem onto the solution. Rather than excluding the parties from deciding the outcome, mediation works because the parties are involved in the solution and they have their own say. Because the process of mediation is neither evaluative nor binding without all parties’ agreement, parties tend to feel a far greater sense of control than by arbitration or court proceedings. Neither party should feel that they are winners or losers, but rather that they have brought the dispute to an end. In order to reach a mediated agreement, a voluntary settlement will need to achieve a careful balance of the parties’ principles; what they realistically see to be fair; and a degree of pragmatism in the light of the alternatives to reaching a deal. It is the mediator’s job to enable the parties to discover that balance so that the parties can have the very best chance of bringing the dispute to an amicable close.
Is ADR the same as mediation?
ADR is an umbrella term that is generally applied to a range of techniques for resolving disputes other than by means of traditional court adjudication. ADR includes mediation, mini-trials, conciliation, early neutral evaluation (ENE), arbitration, expert appraisal, independent intervention, expert determination, ‘stakeholder dialogue’ and any other alternative to court based assessment of liability and quantum.
Are any cases not suitable for mediation?
1. Where there is a need for a precedent / test case litigation
Very occasionally, cases are considered (realistically) to be of such importance that a precedent needs to be set. These will normally be cases that are representative of a class of cases, where the outcome of the test case will impact on the rights and obligations of parties in similar situations.

2. Where there is a need for an injunction
There are times when a court’s special power is required to grant a restraining order, an order to freeze assets or, for example, to allow a party to search and seize evidence. It should be noted that mediation will very frequently assist parties to find a resolution to the underlying dispute once the immediate risk has been stabilised by the granting of an interim injunction.

3. Where negotiations are progressing satisfactorily
Many cases are resolved to the satisfaction of the parties by informal Without Prejudice negotiations. Mediation can be agreed as a ‘next step’ in such negotiations to ensure that the negotiations do not continue indefinitely without reaching a conclusion. The question to ask yourself is whether speedy progress is being made at each Without Prejudice call or meeting. If not, then it is a good time to mediate. As mentioned above, a good mediator will be able to discover where the principle/fairness/pragmatism/balance of a deal lies and so the end result will be more likely to be satisfactory for the parties.
Is it ever too early to mediate?
As soon as you are able to evaluate the strengths and weaknesses of your position, you are ready to mediate. Provided both parties prepare properly, the process of mediation itself is likely to clarify the strength of your position, so it would not be fatal to mediate if there are unanswered questions about your opponent’s position.
How do I prepare for mediation?
1. Agreement to mediate
The first step is to agree with your opponent to mediate your dispute. It is no longer seen as a sign of weakness for one party to propose mediation. It is the published policy of the UK’s Ministry of Justice to encourage parties to attempt to settle their cases by mediation. The courts are targeted to reduce the number of cases getting to a final hearing and judges are bound by the court’s own civil procedure rules to encourage and facilitate out-of-court settlement. The court will impose costs sanctions on parties who unreasonably refuse to mediate cases.

2. Appointment of a mediator
Once the parties have agreed in principle to attempt mediation, a mediator needs to be chosen. The best way to choose a mediator is based upon personal recommendation, but there are a number of referral organisations as well as the growing body of experienced independent commercial mediators. There are both lawyer and non-lawyer mediators. One of the questions most frequently asked is whether to use a mediator experienced in a particular field. The key is, quite simply, for the mediator to be a good mediator. It helps if they are familiar with the type of dispute, but they are not there to decide the rights and wrongs of the dispute. The mediator is there to work with the parties to find a solution.

If a mediator is proposed whom you don’t know, why not pick up the phone? He or she will usually be pleased to discuss a potential new mediation and you can ask for references if you are still unsure.
How much will I pay for a mediator?
Some mediators operate on the basis of a fixed fee per day plus preparation, others on an hourly rate, others on a scale relating to the value of what is in dispute. You should always check what is included in the fee, as it is not uncommon for mediation services to bill for disbursements (such as travel, food and accommodation) and an hourly rate for preparation time in addition to the agreed fee.

Very often a mediator will work with an assistant mediator, for whom, normally, no charge is made. Generally the assistant mediator will be a trained mediator who wishes to gain greater useful experience, which will help when they work as lead mediator. Sometimes the complexity of a dispute will warrant a co-mediation team, where two or more mediators work jointly.
Where and when will the mediation take place?
Once you have appointed your mediator, you need to agree a date and a venue for the mediation meeting.

If possible, the mediation should take place on neutral territory. Holding the mediation in one of the parties’ offices can sometimes mean interruptions that break the flow of negotiation. It can also create a sense of inequality. The flip side to this is that there will be access to helpful facilities, such as computers, printers and copiers, which can be invaluable when it comes to drawing up the settlement agreement.

In an urgent situation, a mediator can be appointed at very short notice. If the papers are ready to provide to the mediator and there is an available venue, a mediation meeting can take place within a few days of appointment. However, ideally, you should aim to allow 2 - 3 weeks between the date of appointment and the date for the mediation. This will allow time for Case Summaries (see below) to be exchanged and bundles of key documents to be agreed. It will also give the mediator good time to read the papers.
What documentation do I need to give to the mediator?
Case Summary
The parties should prepare a short Case Summary, which they exchange and then provide to the mediator around 14 days prior to the mediation. The ideal length of a Case Summary is between 3 and 5 sides of A4 plus supporting documentation of up to 50 pages. The Case Summary, also described as a Position Statement, should cover the following essential points:

• key facts (including agreed facts)
• legal issues
• areas in dispute
• issues outside the legal case
• who’s who, including who will be at the mediation and their role
• the state of any Without Prejudice negotiations, including any offer to settle, Part 36 offers etc.

If pleadings have been served, it can be helpful to include copies of the Statements of Case. Witness Statements can be useful, but if there are 50 of them, choose only those that will help the mediator to understand the case.

If possible the parties should agree on a single joint core bundle of documents, saving the mediator from having to sift through duplicates.

Parties should also be encouraged to provide the mediator with a separate “for your eyes only” document dealing with any confidential issues that they do not wish to share with the other party.

Mediation Agreement
Before the mediation begins, the mediator will ask the parties to sign a Mediation Agreement. A good mediator will circulate this in draft so that the parties have a chance to consider it before they turn up to mediate. You may want to discuss with the other party how you would like to define the dispute to be mediated.

By one of the clauses in the Mediation Agreement, the parties enter into an enforceable confidentiality agreement in which they agree to keep the details of the mediation confidential. The mediator will talk to you about the confidentiality of the mediation process when he or she meets you or in a pre-mediation call.
What will happen before the mediation?
The mediator will spend time reading any papers submitted including a written summary of the issues to be resolved. The mediator may also telephone the parties’ representatives before the day of the mediation meeting to clarify particular points. The mediator will structure the format of the day to ensure the best prospect of making constructive progress.
What documents should I bring to the mediation?
You will need to be as familiar as possible with the relevant documents and you should expect to be asked questions about your case. Remember, this is not because the mediator is judging the case, but because he or she needs to try to understand the parties’ conclusions about their cases and how they have reached them. Without asking (sometimes probing) questions about the parties’ cases, the mediator may not be able to understand and remove all of the barriers to reaching a mutually acceptable settlement agreement. It is therefore helpful to bring with you your Case Summary and any joint agreed core bundle or relevant documents. If you don’t have an agreed bundle, bring the key documents you rely on to prove your case or disprove the other party’s arguments.

It is also helpful to have a copy of any court documents to hand as well as any Witness Statements and expert reports.

You might also want to bring documents with you that you do not want the other side to see, but which can be shown to the mediator in confidence. Remember, mediators are bound to keep information you provide to them confidential unless you give them permission to share it.

If you intend to plead poverty, you are more likely to be believed if you equip yourself with up-to-date financial information, such as management accounts, bank statements and facility letters.
Who should I bring with me to the mediation?
Mediation will only work if you have the right people at the negotiating table. As a rule of thumb, your team should include everyone you will need in order to settle your case, and no one else. The same person may well fulfil more than one of the suggested roles set out below.

The decision maker
The decision maker is the most important person. This is the person with the authority to settle – in other words, this person has complete freedom to do whatever deal they think appropriate at the end of the mediation process, without having to seek approval from anyone else.

The sounding board

Many people find it hard to make the decision to settle a case. The decision making process can be made easier by the presence of a trusted colleague or a friend or relative to act as a sounding board and give support. It is common for decision makers to seek guidance from someone over the phone. However, unless they are absolutely necessary to approve a fully authorised delegated decision maker, such as insurance underwriter, it is very much preferable if that person has spent the day at the mediation, listening to the arguments and seeing the settlement proposals develop.

The witness
You also need someone who has knowledge of the key facts. This is sometimes a witness but, whoever it is, it is best if he or she is conversant with the detail. The witness can be the same person as the decision maker.

The technical expert
You need someone who understands any technical issues. If you are relying on independent expert evidence, you may be assisted by having your independent expert present to advise you or to explain your position to the other party. However, some experts find the mediation process frustrating and can occasionally jeopardise the chances of reaching a settlement because they view the process of mediation as an evaluation of their expert evidence. Experts can play a valuable role, provided they understand that the mediation process is designed to find solutions, rather than to prove their point.

The legal adviser
If there are legal issues involved, the parties will derive tremendous benefit from a legal adviser in their team. The legal adviser may be the spokesperson for the party, but does not have to be. The legal adviser’s most important role can be divided into three distinct aspects:
to advise his party on the strengths and weaknesses of their legal case and on the best and worst alternatives to any proposed settlement;
to explain the strengths of their legal case to the other side’s representative and why they think their legal position is stronger than that of their opponent;
to prepare a written legally binding settlement agreement at the conclusion of the case.

The absence of a legal adviser will not prevent a case from settling, but may leave a party unable either to explain the strength of their position or to make a realistic assessment of their risks. Remember, the mediator is not able to give legal advice to either party. Occasionally, a mediator will recommend that an unrepresented party seeks independent legal advice before signing up to a settlement agreement.
What happens on the day of the mediation?
Make sure you arrive promptly on the day of the mediation meeting. For a 10 am start, a party’s ‘team’ should aim to arrive around half an hour in advance. This will give you time to settle in to your meeting room, sort out papers and deal with any housekeeping issues that arise. You will also benefit from a few minutes of silence to get your heart rate down before the Opening Meeting (see below) and seeing your opponent, possibly for the first time since the dispute arose.

Meeting rooms
Both parties will have their own private meeting room where they can spend time on their own or in confidential discussion with the mediator. These single party private meetings are sometimes referred to as ‘Caucus’ meetings. There will also be a ‘Board Room’ where any meetings or presentations with all parties can take place. These group meetings are often referred to as ‘Plenary’ meetings. You will find that the mediator may use the Board Room to think on their own or to discuss matters with an assistant mediator.

The Opening Meeting
There is no set pattern to mediation, but most mediators will encourage the parties to come together early on in an Opening Meeting to make a short presentation about their case to the other party. The mediator will also use that meeting as a formal introduction to the day and can be expected to set out any ground rules. The mediator is likely to let the Opening Meeting continue as long as constructive progress is being made.

In some cases, relationships between the parties have broken down to such an extent that they cannot face each other in an Opening Meeting. In this case, the flexibility of the process enables the mediator to dispense with the Opening Meeting altogether, or perhaps to run the Opening Meeting with representatives only. There is no shame to feeling nervous about a meeting in the same room as your opponent. You should discuss any feelings of anxiety with the mediator and together you will be able to agree whether a face-to-face meeting is necessary. It is important to remember that the mediator will not try to force you to do anything that you are uncomfortable about.

Caucus Meetings
Following the Opening Meeting the mediator will divide his or her time between the parties, spending time with each party privately in their respective rooms. During this process, the mediator will be able to explore the parties’ cases, their requirements from any settlement and any confidential issues that will impact on their ability to make a deal.

As the day continues, the mediator will facilitate negotiation and, when the parties are in the ‘zone of agreement’, the details of settlement.

All information given to the mediator in Caucus Meetings will be kept confidential from the other parties unless you have expressly agreed to the sharing of information. This extra layer of confidentiality enables the mediator to gain a unique understanding of the parties’ true positions. The mediator’s commitment to maintain confidentiality provides the parties with the freedom to talk openly about all aspects of the dispute without fear of saying the wrong thing. The mediator is essentially sitting on top of a wall of confidentiality between the parties, looking at each side’s confidential position. This is the magic key that gives the mediator the ability to help the parties balance principle, fairness and pragmatism as they develop various options for settlement.

Plenary Meetings
The flexible nature of mediation enables the mediator to conduct it in whichever way is most likely to bring the parties to a deal. Very often, issues arise out of Caucus Meetings that need further direct discussion between the parties. Where the mediator considers that it will assist the mediation moving towards settlement, he or she might bring the parties back together in Plenary Meetings to allow specific issues to be aired.

Time on your own
Parties will be left on their own for what can seem like long periods at a time. The mediator is usually with the other party when this happens. It can be tempting to deal with other matters such as calls to the office, or even logging on to deal with emails. However, one of the benefits of mediation is having quality time to think. Time on your own should be seen as a valuable opportunity to think about the strengths and weaknesses of your legal case; to analyse in detail the work that will be involved in taking the case to trial or arbitration and the likely cost; to consider carefully the points made by your opponent; and, most importantly, to think about the settlement options available to you.

When settlement is reached, the mediator will try to make sure that all possible problems are considered, but it is up to the parties to ensure they are happy with the terms of settlement proposed. The parties’ advisers should discuss issues such as costs, VAT and tax positions before the mediation. Most solicitors and barristers are not qualified to advise on the tax consequences of settlement agreements, so the parties should make sure that they take appropriate taxation advice beforehand. Eleventh hour issues such as taxation can scupper an otherwise excellent deal. Leaving matters to be resolved at a later date risks re-opening negotiations and should be avoided if at all possible.

A settlement agreement should be clear in its terms, final and recorded in writing and signed by the parties to the dispute. Many legal advisers will come to a mediation armed with a ‘boiler plate’ draft agreement. Parties should be aware that the more complicated a settlement, the longer it will take to draft and the greater the chance of a deal unravelling.