At Bray & Bray our Dispute Resolution solicitors will advise whether disputes should be resolved through court proceedings or Alternative Dispute Resolution (ADR), including Mediation.
ADR refers to any process where the parties involved agree to resolve the dispute without engaging in court proceedings; either in the County Court or High Court. ADR is flexible and can be adapted to suit the parties’ needs.
It is important to note that Courts often prevent parties from proceeding to trial unless ADR has been considered first. Unreasonable refusal to engage in ADR by one party may ultimately result in cost sanctions against the party who refused to engage, if the dispute is subsequently dealt with through court proceedings.
Important principles of mediation
- Matters that are raised within mediation cannot later be referred to in any existing or subsequent court proceedings. The role of the mediator is not to act as a judge or arbitrator, but to facilitate the reaching of an agreement between parties.
- Before the mediation starts, parties enter into a mediation agreement with each other and with the mediator. The mediation agreement sets out the ground rules.
- The purpose of the mediation process is to allow parties to settle their commercial and civil disputes in a non-confrontational way. Part of the role of the mediator is to ensure that both parties are dealt with in an environment where they feel safe and are not threatened.
- By a process of seeking and disclosing information strictly with permission, the mediator seeks to facilitate an agreement between the parties.
- If an agreement is reached in the mediation then there will be a binding and enforceable settlement agreement.
Does commercial mediation work?
In a survey conducted by the Centre for Effective Dispute Resolution (CEDR) among its accredited mediators, mediators reported that in excess of 80% of cases in which CEDR accredited mediator acted in a commercial mediation, the dispute resulted in a successful outcome.
Parties who are in dispute must always properly consider engaging in ADR with their opponent. Mediation is a tried and tested form of ADR which works. However, there is still a cost involved. Usually parties share the cost of the mediator. Mediators usually charge depending on the value of the claim and the number of parties involved. The parties will also have to pay their legal advisor (either solicitor or barrister, or sometimes both) for the duration of the mediation. There will often be a venue cost (where the mediation is held) which is usually shared between parties. While mediation will cost, that cost is always less than the cost of contested court proceedings.
Speak to a commercial Mediation solicitor today
Bray & Bray regularly represents clients at mediation and in our experience, the success of mediation generally reflects the findings of CEDR mediators. We see that mediation often results in successful resolution of disputes, including those which may appear incapable of resolution.
As a CEDR Accredited Mediator, Tim Bennett, Bray & Bray Partner and Head of Litigation & Dispute Resolution offers services as a mediator of commercial and civil disputes. You can view details of Tim’s mediator profile and fees for conducting mediation here.
Call Tim directly on 0116 204 5331 or any of the offices below.
Leicester call us on 0116 254 8871.
Hinckley call us on 01455 639 900.
Market Harborough call us on 01858 467 181.
Frequently Asked Questions
What is Mediation?
Mediation is a process by which a neutral third party (the mediator) assists the parties and facilitates the reaching of an agreement which settles the parties’ dispute on terms which each finds acceptable.
What happens if court proceedings have already begun?
The fact that parties have already started court proceedings does not prevent them engaging in ADR at the same time. The Civil Procedure Rules governing court proceedings in England and Wales specifically refer to the need for parties in dispute to consider ADR before starting court proceedings.
What happens during Mediation?
While there is a general process that mediators use to settle disputes, that process is flexible. The usual process involves the mediator meeting parties privately in their own allocated private rooms at an agreed venue, such as the mediator’s offices. In that first meeting the mediator explains the mediation process and deals with the important rules regarding confidentiality and without prejudice. After these initial private meetings, there would usually be a short joint session when the parties and their legal representatives (if any) meet with the mediator. In that first joint session the mediator explains the ground rules for mediation and each party has an opportunity to explain their position. After the joint session the parties return to their private rooms and mediation continues, with the mediator having discussions with the respective parties and, taking information between them. A further important point to make about confidentiality is that whatever a party tells the mediator is confidential and is not disclosed to the party’s opponent unless the party providing that information specifically authorises the mediator to disclose it.
How long is the Mediation process?
Mediation is a process that cannot be rushed. Parties to mediation should expect the mediation process to take a full day.
Are their other forms of ADR?
Another form of ADR is a without prejudice, round table meeting where the parties and their advisors meet face to face to discuss settlement. Sometimes it might be the parties’ advisors who meet together. We often find that without an independent and neutral mediator, without prejudice meetings are less likely to achieve success.