Mediation is the process by which parties seek to settle their disputes with the assistance of an independent third party, a mediator.
The process is voluntary and confidential. Let's look at these two aspects first.
Mediation is voluntary. No-one can force you to attend a mediation. This does mean that both parties must want to mediate or at least be prepared to give it a try. Hopefully, your opponent, as well as yourself, has made themselves aware of the many benefits of both mediation and a mediated settlement and so a situation where someone refuses to mediate should be uncommon - but it's not compulsory.
However, a warning to anyone refusing to engage in mediation. If you are involved in court proceedings and are deemed to have unreasonably refused to mediate, the court is likely to penalise you in costs in some way, whether you have won or lost.
Mediation is also confidential. This is helpful in keeping your business private. All parties agree not to talk about what goes on during the mediation to the outside world (unless part of your settlement says otherwise). Confidentiality also plays an important role on the day of mediation itself. If the parties are split in different rooms, as is likely at some point in the day, anything you say to the mediator will not be taken into the other room, unless you specifically instruct the mediator to do so. This principle is at the foundation of the mediation process and why it proves successful on so many occasions.
When should you mediate?
As a general rule, as soon as possible. The main reason behind the making of our video "That's Mediation" was not only to make the public aware of mediation, but to suggest to them that there were added benefits of seeking a mediated settlement early. It's simple really. If two people have a dispute over something worth £10,000 and seek to mediate before they have racked up any legal costs, the mediator has to find a way of bridging a £10,000 gap. If the same parties go to mediation on the same dispute, but after each has incurred £10,000 in legal fees, the mediator has got to find a way of settling a dispute three times as big; it can still be done, but it's going to be harder and the end result likely to be less attractive.
What happens before the day?
For most disputes, preparation for mediation is pretty simple. Once a date and a venue have been agreed, all the parties will be asked to do is supply the mediator with a bundle of the most important documents (that relate to the dispute) and a page or two on what they believe the case is about and, if they want, how they think the case should settle. In cases involving companies or partnerships, it is also very important to have the people who have the authority to "make the deal" present on the day.
What happens on the day?
The mediation process belongs to you. The parties therefore have a large say as to how the day goes. Sometimes the day starts with a joint session. This can be helpful to iron out any misunderstandings or just to let people get things off their chest. Sometimes, tensions are so high that a joint session should not be entertained. Thereafter, the parties may well be housed in separate rooms and the mediator will shuttle between the two, until a solution is reached.
There may well be times during the day that it seems as if we are getting nowhere fast. Don't worry. Your mediator will have seen many such moments in the past and still have reached a settlement for the parties. Keep your mind on the task at hand - your mediator will do everything possible to find a settlement for you.
If / when a settlement is reached, the terms are set down in writing and signed by the parties. The agreement is binding. If court proceedings have already commenced, the agreement will take the form of an order that will then be lodged with the court.
Of course, sometimes settlement is not achieved. That is the right of anyone attending mediation. However, the process is "without prejudice" so nothing said in trying to reach agreement during the day can be used in court. And many disputes that do not settle on the day still get settled shortly after or at least before trial.
