Can I be forced to mediate?
The short answer is no, not at the moment, although the courts are increasingly strong in recommending mediation and may punish a party in costs if that party unreasonably refuses to engage in mediation. It is likely to become compulsory in an increasing number of cases in the near future.
Can I be forced to settle in a mediation?
No. Mediation is entirely voluntary. The mediator has no power to compel settlement.
Does a mediation have to be conducted face-to-face?
No. Many mediations are now conducted online.
How do I choose a mediator?
It depends very much on the nature of the case. In many cases it will be wise to choose a mediator who knows something about the relevant law. This is especially so in some specialist jurisdictions. A mediator who knows about will and probate may be better equipped than one who doesn’t to guide the parties through a probate dispute, for example. That may not be so relevant when the dispute is just about money. The main thing is to choose a mediator in whom all parties have confidence.
How is mediation different from going to court?
Court is a formal process controlled by a judge and is subject to a host of procedural rules and other constraints. Mediation is flexible. A judge will decide the outcome of a case. A mediator will not: his or her role is to guide the parties to a settlement. Going to court is expensive and can take as long time. Mediation is quicker and much cheaper.
How does mediation work?
Mediation is a simple and flexible process: the parties to the mediation are in control, not the court. The parties appoint a mediator who is independent and neutral. He or she will usually agree some ground rules before the mediation states. As a general rule, each party will produce a position statement setting out their claim or defence and anything else relevant to the dispute. The mediation will often begin with a joint meeting, where all the partiers sit in the same room, but after that the mediator will discuss the case with each side, attempting to elicit from them what they want to achieve and encouraging them in the direction of common ground that will enable them to settle the dispute. If the mediation succeeds and the parties do reach agreement, the terms are set out in a settlement agreement that becomes contractually binding.
Is the result of a mediation legally binding?
A successful mediation usually ends with the parties agreeing and signing terms of settlement which are contractually binding on them.
What are the advantages of mediation?
It’s confidential: no one need know about it.
It’s fast: you can mediate at any stage; you don’t have to wait for a trial, and most mediations last a day or less.
It’s cheaper than going to court: the costs of going to trial can be, and usually are, very high; mediation costs a great seal less.
It brings certainty: the parties agree the terms on which they settle; they are not subject to the uncertainty that always attached to the outcome of a trial.
It brings swift relief: relief from the time and pressure involved in litigation; it is much less stressful than going to court and enables the parties to get on with their lives or business without having proceedings hanging over their head.
What are the likely costs of a mediation?
These will very according to the nature and complexity of the dispute, the amount of money involved, the amount of preparation the mediator is likely to have to do, and so on.
Whatever they are, they are likely to be considerably less than the costs of taking a case to trial.
What happens at a mediation?
Mediation is a flexible process: the parties are in control of the process.
In many cases the mediator and the parties’ advisers will have spoken before the mediation takes place to agree how the mediation itself should be conducted.
That said, there are some common features of most mediations that are easy to describe.
Usually, before the mediation, each party will prepare and exchange with the other party/parties a document called a position statement. What is in the position statement will depend on the case and what the parties want to say, but broadly it will set out what each party says their case is all about from his/her/its point of view. It may contain an offer to settle or it may not.
The mediation itself will often begin with what is called a joint session. This is where the parties and those attending meet and introduce themselves. It is also the time for the mediator to explain some of the “rules” of mediation, usually to emphasise the confidentiality of what is to follow. It will not usually be necessary to discuss the case itself: the position statements should have done that.
The mediation proper then begins. It usually takes the form of the mediator discussing the case with the parties with a view to exploring the strengths and weaknesses of their case with a view to eliciting offers to settle that, one hopes, will lead to the settlement that is the purpose of the mediation.
But it’s important to emphasise that what happens is dictated by the parties. The mediator is there to facilitate a settlement, not to decide the rights and wrongs of the case like a judge.
When agreement is reached, it is usual to set out the agreed terms of settlement in a written agreement. This is usually prepared by the parties or their lawyers, although the mediator may step in to help if required.
What is alternative dispute resolution?
Alternative dispute resolution (ADR) is a term that covers any dispute settlement regime that is an alternative to going to court. It can take the form of arbitration, conciliation, (early) neutral) evaluation and so, but mediation is the most common form.
What is mediation?
Mediation is a form of alternative dispute resolution. In other words, it’s a way of settling a legal dispute without going to court. It is voluntary, and it’s confidential; and if it’s successful it costs considerably less than going to court. It will also be much quicker than going to court, and it has the value of certainty: the parties agree the terms on which they settle their dispute: they, not the court, are in control.
What is a position statement?
It’s exactly what it says it is: it is a short statement prepared for the benefit of the mediator and the other party or parties setting out what an individual party’s position is at the time of going to mediation. It will usually contain brief details of the party’s claim or defence.
What is the difference between a mediator and a judge?
A judge will decide a dispute between two or more parties and can make an order giving legal effect to his or her decision. A mediator makes no decisions: his or her role is to assist the parties to settle their dispute.
What should go into a mediation bundle?
Just the position statements, the letters before actions and any reply (if no proceedings have been commenced) and the statements of case and defence (if they have been commenced) and perhaps the key documents relevant to the dispute. The shorter the mediation bundle the better. In most mediations the bundle is rarely referred to.
When is the best time to mediate?
You can mediate a dispute at any time. If you go to mediation before proceedings have been issued there is a considerable advantage in terms of saving costs; if you wait until proceedings have been started, some costs will already have been incurred, but the issues may be clearer, and the psychological pressure to settle may be greater. In the end, the best time to mediate is when the parties feel it is time to settle and are committed to doing so.
Will a mediator provide legal advice?
Not as a rule. A mediator is neutral and independent. That said, he or she may occasionally offer basic advice if it help to further the mediation in the direction of settlement.