What is mediation?
Mediation is the most common form of alternative dispute resolution. If you have a dispute and you do not want to be involved in litigation, the best way how to resolve your dispute is to try mediating with the other party. Mediation is a process whereby you appoint impartial third party to hear your dispute. He will then help the parties negotiate the settlement. Mediation does not guarantee any binding resolution or settlement. It will be up to you and the other party to decide whether you want to enter into a settlement agreement. Mediation is therefore a form of dispute settlement which aims to avoid court proceedings. Mediation may seem as a sign of a little weakness; this is a disadvantage of the mediation.
Circumstances which are not appropriate for mediation
Parties may sometimes be required to mediate by their contract .E.g. if there is a mediation clause. Mediation is not appropriate if either party does not have any right to enter into an agreement, if you need immediate injunctive relief, if you need a precedent, if constitutional rights of one of the parties are affected or if there is no genuine commitment to resolve a dispute. It is essential that parties preserve early exchange of information so that they understand their positions and can perform negotiated discussions followed by settlements.
The mediation process
Mediator is an independent third party who is there to assist the parties in arriving to their decision and so that they can settle the dispute. When you want to appoint a mediator it is important to consider his experience and professional background as you will need someone who understands the matter concerned or someone who has worked with a similar matter before. Mediation is the most effective if all the parties clearly understand the matter. It is common that the mediator will be immune from breach of contract or negligence. Such an exclusion of liability would be stated in a mediation clause of the contract. After the appointment of an independent mediator the parties will be required to enter into a contract (mediation agreement) with a mediator. Mediator will generally be asked to keep all the information confidential. If you decide your mediator to be a solicitor, he will have to comply with Solicitors’ Code of Conduct rules. It is appropriate to choose a solicitor as he will have the best understanding of all issues arising whether legal or non legal.
At the start of the mediation process the parties should agree on some sort of a structure or framework, timetables according to which the mediation will take place. Further the parties should choose a venue for their mediation. The best would be a neutral place, many ADR institutions use them. There needs to be a sufficient amount of rooms available for each party to discuss the issues in private and confidence. If a dispute is complex the parties need to agree on some directions before the mediation starts. E.g. each party could prepare submissions in a form of statements of case to submit to a mediator so that the mediator sees the position of each party. The parties may also prepare bundle of relevant documents which will have to be disclosed to the mediator and to each other before the mediation takes placer. The parties should then decide who will attend the mediation (representatives of each party) and the decision should be reached.
The mediation normally starts with a so called plenary session. Mediator will introduce the problem and will identify and clarify the objectives of the mediation. He will also deal with other issues e.g. his impartiality, procedural rules, confidentiality and privilege, status of the agreement reached. Each party will present their case to the mediator in limited time. The other party must not interrupt during this time and must hear the opponent. The mediator may allow questions after each party’s presentation. There will be break out sessions where each party will move to another room to discuss the issues in private. The parties will then try to reach settlement. Each party will make their own proposal for settlement. Mediator will try to narrow down the issues to smoothen the negotiation between the parties. It is not common but in some cases the mediator may prepare non-binding recommendations to consider for the parties.
The outcome of the mediation may be either full or partial settlement. One of the parties if not both may wish to terminate the mediation or the mediator can terminate the mediation himself. In the event of a complete resolution being reached a settlement agreement will be drawn up. Generally this is done by a lawyer but can be done by a mediator too. If the settlement was only partial, a settlement agreement will be drawn up only in relation to those resolved and settled matters.
Enforcement of settlement agreement
This agreement can normally be enforced if the parties entered into legally binding agreement. Written settlement will be enforceable as a contract which means you could have a remedy in suing for a breach of contract. If the agreement was only oral, it would be necessary to look at the intention of the parties. It is best to clarify the intention to be bound by the agreement at the start of the mediation in order to avoid any misunderstanding. The agreement can be enforced as a court order if at the time of settlement a case is pending; the agreement could be incorporated into consent order. The parties can obtain private or public funding. The parties may have insurance which will cover the expensing arising out of the dispute.