• Civil Mediation - A Brief Overview


    Mediation is a means of settling disputes on a without prejudice and confidential basis by agreement rather than through court proceedings or arbitration.  The parties agree to appoint a mediator whose role is to lead discussions between the parties and to facilitate negotiation by encouraging the parties to take a realistic view of their position.

    The mediator is an independent person (often a professional but not necessarily a lawyer) who has trained and become accredited as a mediator.  In disputes involving technical issues, the parties may choose to appoint a mediator with technical expertise which is specific to the dispute.  The role of the mediator is to identify the points on which the parties agree and disagree, the strengths and weaknesses of their cases, the best and worst case scenarios and to explore the basis upon which the parties might settle their dispute.  It is not the role of the mediator to decide which party is right.  If the parties appoint a lawyer as the mediator it is not part of the mediator's role to advise either party during the mediation.

    The mediator cannot impose a settlement on the parties and the discussions cannot be referred to outside the mediation or as part of any court proceedings (unless the parties agree).

    Mediation should be considered for all cases but not all cases are suitable for mediation.  For example, if there is an important point of law to be tested in the courts or a legal precedent is sought, the privacy of mediation is inappropriate.  Similarly, if settlement discussions are taking place and the parties are making progress, mediation will probably be inappropriate, and if a party requires an emergency injunction an application must be made to the court.

    The courts encourage the parties to use alternative dispute resolution procedures (of which mediation is one variety).  If settlement discussions have reached a deadlock, mediation can help to break the deadlock, but successful mediation usually requires a degree of compromise on all sides.

    The mediation process

    The following steps are typical:

    1. The parties agree to mediate.
    2. The parties agree the appointment of a mediator, or elect a third party to appoint a mediator for them.
    3. The mediation appointment is set.
    4. The parties agree a timetable for the exchange of any documents and submissions.
    5. The parties meet at the mediation appointment and may each make a short presentation of their position.
    6. The parties retire to separate rooms and the mediator spends time with each party to explore the possibility of reaching a settlement.
    7. If the mediation is successful the parties usually sign a binding agreement.
    8. If the mediation is unsuccessful, the parties may pursue their dispute through litigation or arbitration.

    The main advantages of mediation are:

    1. A settlement is likely to save time and legal costs.
    2. The parties avoid the risk of losing if the dispute proceeds to litigation or arbitration.
    3. Confidentiality.
    4. A settlement is more likely to enable the parties to continue a commercial relationship.

    The success of mediation depends on the mediator's skills and the willingness of the parties to choose a settlement instead court proceedings or arbitration.

    Ideally the parties will reach an agreement which can be recorded in writing on the day of mediation but where this is not possible they can often settle shortly afterwards as a result of the negotiations during the mediation process and after the parties have had the opportunity to reflect on the issues that emerged during the mediation.

    If the parties do not settle their dispute they can leave the mediation and commence court or arbitration proceedings, or engage in any other dispute resolution procedure, knowing that nothing said or done in the mediation can be referred to outside the mediation without the agreement of all the parties.

    The author, Rob Kelly, is an accredited mediator and regularly advises clients through, the mediation process, and accepts appointments as a mediator across a range of civil disputes.