Frequently asked questionsI can negotiate, why should I mediate?
If your negotiation leads to a conclusion with which you are happy then there is no need to mediate. However, where negotiations break down or there is deadlock, a mediation session can break that deadlock.
Negotiation tends to be confrontational. The parties perceive themselves to be opponents and each wants to “win”. The mediator will try to shift the dynamics of the negotiations away from the entrenched positions.
By a series of questioning techniques the mediator encourages the parties to move away from positional bargaining to a negotiation where the parties view each other as collaborators looking for a way to solve the problem.
In a mediation the parties are not in a confrontational situation. They negotiate through a mediator who helps to introduce objectivity.
The discussions with the mediator are private. Therefore the parties can share confidences with the mediator and reveal their true interest. The mediator obtains a unique overview of the dispute and can help identify ways in which the parties can satisfy their needs. The mediator encourages the parties to explore alternative options, which they may not have been able to consider within a litigation framework.
Mediation offers the parties an opportunity to bring into discussion issues which they cannot or are not allowed to raise in court or arbitration proceedings. But these issues may be fundamental to reaching a resolution.
The latest statistics show in over 90% of cases where mediation is used it leads to a settlement. This is even if litigation has been started. Often settlement is achieved in a day or less instead of after months of litigation.
No. Both parties have already made their positions clear. All they are really saying is that they are looking to try and enter into dialogue to see if they can resolve the dispute in a way that satisfies their respective needs. The aim is to avoid further delay, expense and aggravation associated with the traditional methods such as litigation or arbitration.
In mediation you have nothing to lose. The mediation process is conducted on a without prejudice basis. If anyone is unhappy with the way it is going they can walk out. Nothing has to be revealed to the other side unless you want it to be. If mediation fails then you can turn/return to litigation or arbitration. The preparations that you and/or your professional advisers have done for the mediation will still be useful, although what happens during the mediation cannot be used in any subsequent Court proceedings should the mediation not result in a settlement.
No, you can represent yourself. However, the experience of most mediators is that most parties do employ a professional adviser or at least seek professional advice before coming to mediation. Knowing your legal position in advance is to be encouraged.
Almost any dispute is suitable for mediation provided the parties are willing to try and resolve their differences. Experience has shown that where parties are particularly interested in preserving long term relationships, eg in business, mediation can enable a party to move forward and protect their relationship. Mediation can often strengthen their relations.
No. The process is entirely voluntary. Even at the mediation, you can walk away at any time if you are unhappy with the way it is going. But the courts will now ask you if you have tried mediation or want to try mediation. If you don’t want to you have to explain why. Even if you win your case, if the court think that you unreasonably refused the opportunity to mediate, they may not allow you to recover your legal costs.
Because it’s a voluntary process you can’t make them. But if you then have to start court proceedings or there are court proceedings in existence you can explain the position to the Judge. They will have to give good reasons to the Judge for refusing the opportunity or they will run the risks of not recovering their costs even if they are successful at trial.
Any time. Many parties are now referring matters to mediation before they start court proceedings. The Court Rules say that starting litigation should be a last resort. But if you have started court proceedings they can be suspended if the parties agree to refer the dispute to mediation.
You are free to carry on with any existing court proceedings or even start court proceedings. Everything you have told the mediator privately remains confidential. Provided there is no threat to life or limb or illegal activity, nobody can call upon the mediator to repeat what was said, not even the court!
Even if the mediation fails you will have a much clearer understanding of the issues. You may even have been able to agree some points and reduce the length of any court hearing.
Most mediations can be dealt with in a day. For smaller value claims you can be offered a time limited mediation for a few hours. We recommend four hours.