Mediation guidance

Mediation is essentially an assisted negotiation. It is a voluntary, confidential and “without prejudice” process provided by a neutral and impartial third party (the mediator). The mediator works with the parties and their advisers to help them find an acceptable solution to the dispute and thereby avoid, or bring an end to, proceedings.

Do I really need a barrister or an expert at mediation – surely they will just complicate matters and increase costs?

If you have offered mediation and received a rejection from your opponent, or if your client wishes to reject an offer of mediation, there could be significant costs consequences that flow from an unreasonable rejection.

Do I really need a barrister or an expert at mediation – surely they will just complicate matters and increase costs?

Selecting the mediator who is best suited to your particular dispute can be critical in ensuring the success of the mediation. However, with so many mediators to choose from, it can be difficult to know who to propose.

The mediation process starts well before the mediation day. Good preparation is key to success.

There has been a considerable debate in recent times about the usefulness of a joint meeting, with many advisors feeling that they do not add anything to the parties’ knowledge and delay the meaningful negotiations on the mediation day. If joint sessions are used simply to recite the pleadings, then that is possibly true, however if the parties fully engage with the possibilities a joint meeting offers, then they can be very powerful in facilitating an early settlement.

Mediation is, as we know, throughout ultimately an entirely consensual process. The parties are free to halt the Mediation at any time during the Mediation or before. That said as part of the preparation for the Mediation and the “big day” it is very wise to consider the structure and features not only of any possible settlement but of the settlement documentation. Indeed preparing and discussing with your client and advisers draft settlement documentation in all but the simplest of disputes (and even then) is highly recommended and very informative.

Mediation – Costs, Case Law and Consequences If you have offered mediation and received a rejection from your opponent, or if your client wishes to reject an offer of mediation, there could be significant costs consequences that flow from an unreasonable rejection.