Mediation is a confidential process that gives parties control over the outcome. Mediators might provide participants with information about what the laws says in particular circumstance or options available to parties, but they do so from a neutral perspective with no interest in the outcome of the dispute and cannot impose a solution.
Within mediation, offers can be made without influencing what happens if the dispute is eventually resolved in court (known as offers made ‘without prejudice’) which can enable participants to try to reach a settlement without compromising their position.
If agreement is reached in mediation, put in writing and signed, it is binding like any other contract. If court proceedings have already commenced, an order of the court which reflects what was agreed in mediation can be made by agreement of those involved (known as a ‘consent order’ or a ‘Tomlin order’).
Are mediators regulated?
Although there is no statutory regulation of mediators, the CMC runs a system of voluntary regulation for civil/commercial and workplace mediators and providers. Mediators and providers registered with the CMC abide by a Code of Conduct, have been trained to acceptable industry standards, have suitable insurance, carry out continuing training and development, and offer access to a complaints process if needed.
The Family Mediation Council runs a similar scheme for family mediators.
Do I need a mediator and a lawyer?
No, people often attend mediation without a lawyer but may well have taken advice from one before doing so. Advice is also available from some organisations run schemes for a particular sector and some offer pro-bono or fixed-rate charges, particularly on the lower-value disputes.
Higher value disputes usually have lawyers present at the mediation as advisors. The principal participants in the mediation are those in dispute and it is important that one person on each side has authority to settle (preferably in full, so that the deal does not have to be ratified by an absent authority). Once the parties have reached a decision and it is put in writing and signed, it is binding on them as a contract.
Is there a right time to mediate?
It is difficult to think of a wrong time to mediate. However, it is often a matter of balancing risk against cost. The earlier in the dispute it is decided to mediate, the less detailed information will be available. So parties have to weigh the possibility of important information becoming available in the future, for example in disclosure, against having less, and perhaps more general, information with the costs being minimal. At the other extreme, full disclosure, witness statements and expert reports are notoriously expensive, and this needs to be weighed against the level of reduced risk that accompanies more information being available.
Common wisdom is that the best time to mediate is before disclosure and witness statements but after each party, particularly their lawyers, fully understand each other’s position in the dispute.
In fact, mediation can take place at any time in the dispute, so long as the parties agree. Some occur before court proceedings, some take place whilst the trial, or arbitration, is taking place. Mediation is a voluntary process and so no party can be forced into taking part, although it has to be said that the courts expect parties to attempt to settle in mediation, or some other dispute resolution process, before going to a judge to find a settlement.