What is mediation?

Mediation is a facilitated negotiation process in which disputing parties seek the assistance of a neutral third party, referred to as the mediator, to resolve their conflict. The mediator is chosen by all parties involved and remains impartial throughout the process. Their responsibility is to steer discussions and facilitate a resolution that caters to the requirements of all participants. The role of the mediator is not to determine the outcome but to empower the parties to come to a mutually agreeable solution. 

The process

Most mediations take place within a day at a neutral venue, agreed between the parties. The mediation process is flexible and can be catered to the parties’ specific needs. Mediation can take the form of a collaborative joint session, where all involved parties convene with the mediator to discuss the issues and strive towards an amicable settlement. More often, it is conducted in separate rooms, with each party engaging individually with the mediator so that a degree of separation is maintained and the parties avoid direct contact with one another.

Benefits of mediation

1. Mediation is often more cost-effective than going to court.
2. Mediation processes are generally quicker than litigation.
3. In mediation, parties have more control over the outcome of the dispute.
4. Mediation proceedings are confidential, which allows parties to explore potential solutions without fear of negative repercussions.
5. Mediation offers flexibility in terms of scheduling, process, and outcomes. Parties can tailor the mediation process to fit their unique circumstances. Sometimes the settlement can incorporate issues that the court would not consider but may be important to the parties.
6. Mediation provides a less adversarial environment compared to litigation which can help reduce stress and emotional strain on the parties involved.
7. Because parties actively participate in creating the terms of the settlement, they are more likely to comply with the agreement reached.

Why is mediation so important?

Parties are required to help the court further the ‘Overriding Objective’, that is to deal with cases justly and at a proportionate cost. The Civil Procedure Rules in England and Wales (‘CPR’) emphasises the importance of alternative dispute resolutions such as mediation to resolve disputes without the need for formal court proceedings.  

If a party decides to take the dispute straight to court without attempting to settle the dispute through an alternative dispute resolution (‘ADR’), the court can take this into account when making decisions about costs. If the court believes that a party unreasonably refused to participate in ADR and that participation could have led to a settlement, it may order the unreasonable party to pay additional costs or may reduce the amount of costs awarded to that party, even if they win the case.

The Court of Appeal in James Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 141 affirmed the importance of attempting to settle disputes before turning to the courts. The Court of Appeal held: “The court can lawfully stay proceedings for, or order, the parties to engage in non-court based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable costs.”.

Written by Megan Wood – Trainee Solicitor in the Litigation Department

Are you considering mediation or do you have a dispute that could be resolved with mediation? Contact Justine McCool who will be happy to help.