The Mediation Process
Against a background of increasing Court, Tribunal and litigation costs, many people are considering Mediation as a way of resolving their employment and commercial disputes. Mediation is an important form of alternative dispute resolution (ADR). In other words, it is one of the mechanisms that can be used by the parties to a dispute to avoid or conclude litigation (Court proceedings).
There are a number of stages involved in the mediation process. This section deals with them as follows:
- Before the Mediation Hearing
- The Mediation Hearing
- The Role of the Mediator
- The End of the Mediation & Next Steps
The underlying aim of the process is to allow a conflict to be managed constructively resulting in an agreed way forward. The key principles are that whilst the mediator controls the process and facilitates an agreement, the parties themselves suggest and discuss options and determine the outcomes.
At Lincoln based LincsLaw Solicitors, our fully qualified Mediators can provide assistance through the entire process. We can act either as your representative at a Mediation or, alternatively as a Mediator. We encourage anyone who is considering Mediation to contact us. We do not charge for enquiries and we will try and provide some guidance as to your best course of action.
Before the Mediation Hearing
The Mediator will not normally meet the parties prior to the mediation but will:
- ask the parties for some information about the dispute in order to identify the key causes behind it and the issues involved;
- determine if the case is a suitable one for mediation;
- check who else is involved, confirm that they are aware mediation is being proposed and explain the basic process if they do not know how mediation works;
- send the parties a guide to mediation and how it works;
- draft an Agreement to Mediate and send it out to all the parties. This document needs to be signed and returned to the Mediator before proceeding to mediation;
- send the initial (deposit) invoice out - each party must pay their appropriate proportion before the mediation can commence;
- contact the parties direct;
- request preparatory written material from each party (although usually this will be in the form of a Position Statement, Statement of Case or Summary);
- discuss the date, time and location of the mediation.
The Mediator will also need to ask the parties:
- Have you taken part in mediation before?
- Who is attending>
- What are the roles and jobs of those attending?
- Is there a relevant person who is not attending? Why not? Why are some individuals attending but not others?
- If not attending, will there be someone present with the authority to settle on your behalf? If not, can that person be contacted easily and quickly?
- What do you want or will accept as a final settlement?
- If there is to be a written binding agreement, is a lawyer attending to advise you on the implications?
- Alternatively, will a basic agreement (with heads) which can then be sent on to a lawyer be acceptable?
- Do you want or need to take any legal or technical advice before the mediation?
- To consider some initial thoughts on desired outcomes and options
The Mediation Hearing
Although there is always scope for flexibility, the classic mediation process has some key steps, namely:
Opening Joint Session Private Sessions Closing Joint Session
The Mediator will make an introductory statement at the Opening Joint Session. A number of matters will be covered by this statement, including introductions; the stages in the process; applicable ground rules; time-frames and objectives for the day. In addition, during this session, each party makes their opening statements in the presence of the other party/parties.
The Mediator also has to:
- Establish the nature of the dispute;
- Clarify the relevant issues;
- Explore those issues;
- Develop options for resolving the dispute;
- Encourage the parties to reach an agreement if possible
All these matters will be achieved through discussions between the Mediator and the parties in the private sessions. These sessions are a series of informal meetings which are totally confidential. The aim is to identify what has happened, what the issues are, how the parties feel about the issues, how they can move forward and what outcomes they want from the mediation itself.
The number of such sessions will of course vary depending on the nature and complexity of the dispute and the willingness and determination of the parties to reach a settlement.
The Role of the Mediator
The Mediator will act as a facilitator guiding the parties through the process and will try to encourage communication and dialogue between the parties in an attempt to find common ground on which an agreement can be built.
The Mediator will remain impartial, objective and neutral at all times throughout the process and will not express any views about the respective merits or otherwise of each party's case nor dictate what, if any, agreement could or should be reached between the parties.
The End of the Mediation and Next Steps
The Mediator will bring the parties together for a final joint session.
If a settlement has been reached then a written binding agreement can be drawn up. This can be done by legal or other representatives for the parties if necessary. Otherwise, the Mediator can assist the parties in setting out the main heads of agreement and these can be expanded on later. Both the parties and the Mediator will retain a copy of the written agreement.
If no settlement is reached, then the parties are free to take legal or other formal action. However, all discussions and proposals during mediation are non-binding and without prejudice; in other words, anything said during the process cannot be used or relied on in any later proceedings. In effect, the situation is as if the mediation had never happened and the parties are back in the position they were immediately before the mediation process began.
We encourage anyone who is considering Mediation to contact us. We do not charge for enquiries and we will try and provide some guidance as to your best course of action.