mediation

The most common form of mediation is a voluntary, non-binding and without prejudice process.

The mediation process stems from the parties’ agreement to mediate. This may be either incorporated in the contract which gave rise to the dispute or in a separate later agreement to mediate. Alternatively, under the CPR Courts are increasingly ordering a stay of proceedings to allow parties to go to mediation to encourage early settlement.

The parties having appointed a mediator arrange a place to meet and attend. The parties should generally be represented by persons with authority to settle the dispute.

The most common model for mediation involves the parties submitting brief written statements to the mediator. The mediation meetings start with the parties stating their respective cases (often with time limits). The mediator normally summarises at the conclusion of each presentation.

The next step involves the mediator meeting privately with each party in an attempt to help them reach an agreement. These are entirely confidential meetings and the mediator should not disclose any information disclosed by one party to the other without permission. In these meetings the mediator may test the merits of each side’s case but will principally encourage each party to explore commercial solutions to their dispute.

At the closing conference the mediator discusses with the parties where they stand and the parties either agree terms, agree to fix another mediation session, or simply part company without having agreed anything.

If the parties have agreed to settle all or part of their dispute, the mediator will try and agree with them the wording of the draft note of the terms of settlement or heads of agreement for immediate signature. The wording of that agreement in particular must make it clear whether it is intended to be binding or not. If the agreement is conditional on later agreement, then that later agreement needs to be negotiated between the parties.

NB - This is a summary only. Advice should be sought on specific issues and specific cases. All members of the Dispute Resolution Team at emw law are trained to represent clients in the process mentioned above.