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 (and the mediator) agree otherwise.
This should give 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; and without prejudice, so if the mediation does not settle, whatever is said and done in the mediation cannot be repeated in court.
Requires those who have authority to make decisions to be involved
Each party needs to attend with a decision-maker who has authority to settle in the mediation. Ideally, this will be full authority. It can be difficult, and sometimes embarrassing, if the agreed limit of authority needs to be exceeded resulting in several phone calls having to be made to a person who has not experienced first hand what has been said and done in the mediation, and not seen the body language and heard the expressions of the other party.
Putting the team together for a mediation can be challenging. After the decision-maker there needs to be careful consideration of who else attends. Is the support of a lawyer preferred? Experts have usually done their reports, and met to agree common ground, so their presence is rarely justified. Often others are included in the team for comfort, but the bigger the team the more people who need to be kept engaged and committed, otherwise they may become a blockage to settlement.
Can lead to a binding settlement if the agreement is written down and signed
It 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, bringing all the advantages listed above, and yet until a final settlement is reached, the back-stop of the court process is preserved.