Mediation is a voluntary process in which parties appoint a mediator to help them find a solution to resolve their differences. Anything talked about during the mediation is private and confidential and cannot be used in any future legal proceedings. Mediation can be used to settle disputes between people, businesses or other organisations.
Mediators help parties in a dispute to communicate about the issues of concern to them and help participants to negotiate and find solutions that are acceptable to everyone involved. At the end of the mediation process, it is hoped the parties can come to a mutually agreed solution. Mediators are neutral and have no interest in the outcome of the dispute and cannot impose an outcome on the parties, unlike a Judge at court.
Mediators will help you to manage your emotions and communicate with the other party. The mediator will help you to make your points calmly, clearly, listen to the other side without interrupting and getting angry. The mediator will help you identify what is important, what is problematic, and what solutions can be explored and agreed. The Mediator will help you if your finding the process stressful.
Mediators do not give legal advice. The mediator will not suggest possible solutions or advise you on whether any proposed solution is in your interests or not. The mediator will remain completely impartial.
Generally, mediation is much quicker than the traditional court route. You book an appointment with a mediator and mediation can take place. With the court route you might have to wait many months for court hearing dates which may be cancelled at short notice, even on the day. This can result in many months of delays, whilst you wait on a new hearing date all parties can attend. If a court hearing is cancelled, you will be charged a deemed fee by the barrister, and the cost of a future hearing.
Disputes can drag on for a long time before getting to Court. While the dispute rumbles on towards a hearing, you will be expected to commit a huge amount of time, energy, and money to maintain your legal position and prepare for the hearing. So, mediating early can save you huge sums of money.
Mediation gives parties to a dispute an alternative to the traditional expensive and risky route of litigation. Parties enter into negotiations to find an agreement. Anything can be tried/ offered to make a deal or withdrawn if it is not acceptable without endangering a party's formal position.
When in mediation, you are in control of the process, and you can reach an agreement based on the interests of the parties. When you go to court to resolve an issue, the Judge will make a judgement based on the law, and the interests of each party may not be considered.
Mediation allows you to stay in control. You have greater control over the decisions you make, unlike the court route, where a Judge decides for you. In mediation you can decide how you want to resolve the dispute. You do not have to accept a proposal if you are not happy with it.
Mediation can help to maintain relationships. Going through Court is very polarising and will put pressure on relationships. Mediation focuses on communication and finding solutions that work for everyone.
Disputes can be resolved by considering the parties interests rather than legal rights.
The mediation process:
Civil and commercial parties are not committed to a negotiated deal until a written agreement is drawn up by the parties or a Tomlin Order is prepared by the parties Solicitors, and signed by both parties.
In workplace and community mediation, the parties come up with a written or verbal agreement.
Where the Courts feel mediation should been considered and one party unreasonably refuses. The Court might bear this in mind when making a judgement, in relation to costs.
Mediation is a very successful method of resolving disputes and offers a cheaper route to justice than the court system.
There is not a wrong time to mediate. Mediation can take place at any time before your case reaches a final hearing.
The best time to mediate is as soon as you can . This will help reduce the amount of time and money spent on the dispute. Before the parties become entrenched in their legal positions and before large sums have been spent on legal expenses.
Both sides may come to an agreement in a couple of hours, or it might take more than a couple of sessions. Most civil mediation meetings are concluded in a day.
This will vary depending on the type of mediation. In general, the mediator will talk to both sides separately and privately to hear their version of events. Mediators are there to assist with negotiating a settlement.
During the course of the day, the civil mediation process will provide you with the best possible chance of negotiating a mutually agreed solution. Once agreed, you will both draft and sign a legally binding mediation agreement which sets out the terms of the solution you negotiated together. The mediator is not involved in the drafting of this agreement. This is to ensure complete impartiality.
You do not have to be in the same room as the other party you are in dispute with. The Mediator will use private rooms to help you resolve your disagreement without direct contact.
Usually, the parties book three rooms. The larger room, both parties usually attend to state their opening statements. Thereafter parties are in smaller separate rooms. If settlement is achieved both parties will attend the larger room for them or their lawyers to draft the agreement.
When a settlement is reached. The settlement agreement must be recorded in writing in the agreed terms by the parties themselves. The mediator will play no part in the writing of the settlement agreement or signing of the agreement.
The settlement agreement must be signed by all the parties and their lawyers, and must state the agreed outcome of the mediation.
The settlement agreement must state the agreed outcome of the mediation. Where legal documents may be required to be drawn up at a later date. It should be clearly stated in the agreement. The settlement agreement will need to clearly mention if legal documents - draft order, contract, undertaking or other document will need to be drawn up at a later date.
In civil and commercial mediation any written agreement is legally binding. However, workplace and community mediation, the agreement is not legally binding, but is made on good faith.
You might have made good progress in the mediation, but you did quite reach a settlement. In this situation it can be helpful to take a break to think things over, then resume mediation in a couple of days.
Who pays for mediation will depend on the type of dispute. Generally both sides pay an equal share of the mediation fee, room /venue costs, refreshment costs, mediators travels and accomodation costs.
Must types of disputes are suitable for mediation, here are few examples:
Under Civil Procedure Rules (Pre-Action Protocol), the Courts require parties to have actively engaged in other forms of dispute resolution before preceeding to to issue Court Proceedings. Penalties can be imposed if they win or lose at Court.
There are some circumstances when mediation from the outset may not be suitable.
There are:
There is no statutory regulation requiring mediators to be regulated. The Civil Mediation Council (CMC) runs a voluntary system of regulation for Civil and Commercial and Workplace mediators. Mediators registered with the CMC abide by a Code of Conduct having been trained to an acceptable industry standard, have suitable insurance, carry out continuing training and development, and offer a complaints process.
Useful information:
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