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Confidential

The fundamental principle of mediation, and also its primary advantage, is that it is a confidential process. Confidential that it is taking place, confidential in what is said and done in the mediation and confidential in its outcome. Unless the parties agree otherwise.

This gives the parties the confidence that whatever is said and done, whatever unsuccessful offers are made to settle, none of it can be shared outside the mediation group unless agreed. Of course, when a deal is done, others may need to be informed so that the necessary payments and/or actions can be taken, but the overriding principle is that it is a confidential process; so if the mediation does not settle, whatever is said and done in the mediation cannot be repeated in court.

Voluntary

In order for mediation to work it is important that all parties agree to take part. Although the process is directed and facilitated by the mediator it is the parties who control the outcome and any agreement. In civil commercial mediation any agreement is legally binding whereas in workplace and community the agreement is not legally binding but made in good faith.

Enables participants to determine the outcome

Mediation gives the parties the freedom to put litigation aside and to enter into a negotiation in an effort to find an agreement. Anything can be tried in an effort to structure a deal and can be abandoned if it is not acceptable without it endangering a party’s position. Civil and commercial parties are not committed until the deal is put into writing and signed. Then it becomes a contract. In workplace and community mediation, the parties come up with any written or verbal agreement. They are the ones who know what works best for them going forwards. In the workplace, parties may also agree to ask for support from their organisation.

Can lead to a binding settlement if the agreement is written down and signed

In civil commercial mediation is quite usual in the UK for settlement agreements to be made into a Consent Order, which may also be a Tomlin Order (where the terms of the settlement are kept private on an attached Schedule), for sealing by the court. If proceedings have not commenced then a simple Heads of Terms is not uncommon. It is very rare for a mediated deal to fail because the deal is negotiated by the parties and so they own it, and have an investment in it working.

Offers access to justice

The benefits of mediation over the court system are tried and tested.

• Mediation can be quicker, less stressful and cheaper than going to court.
• Once a settlement has been reached a mediation agreement can be drawn up. Parties tend to keep to the mediation agreement because they have prepared the terms themselves.
• Mediations are completely confidential and the information discussed within them cannot be used in court or any other legal action issued at a later date.

On those occasions where mediation doesn’t resolve the dispute, court proceedings can follow. Mediation therefore offers participants better access to justice than a court process alone, it provides a chance to settle the dispute without recourse to the court.