Civil & Commercial Mediation

What is the purpose of mediation?

Mediation is a voluntary process in which parties appoint a mediator to help them find a solution to resolve their differences. Anything talked about during the mediation is private and confidential and cannot be used in any future legal proceedings. Mediation can be used to settle disputes between people, businesses or other organisations.

What do mediators do?

Mediators help parties in a dispute to communicate about the issues of concern to them and help participants to negotiate and find solutions that are acceptable to everyone involved. At the end of the mediation process, it is hoped the parties can come to a mutually agreed solution. Mediators are neutral and have no interest in the outcome of the dispute and cannot impose an outcome on the parties, unlike a Judge at court.

Mediators will help you to manage your emotions and communicate with the other party. The mediator will help you to make your points calmly, clearly, listen to the other side without interrupting and getting angry. The mediator will help you identify what is important, what is problematic, and what solutions can be explored and agreed. The Mediator will help you if your finding the process stressful.

Do mediators provide legal advice?

Mediators do not give legal advice. The mediator will not suggest possible solutions or advise you on whether any proposed solution is in your interests or not. The mediator will remain completely impartial.

What are the benefits of mediation?

Mediation is quicker than litigation

Generally, mediation is much quicker than the traditional court route. You book an appointment with a mediator and mediation can take place. With the court route you might have to wait many months for court hearing dates which may be cancelled at short notice, even on the day. This can result in many months of delays, whilst you wait on a new hearing date all parties can attend. If a court hearing is cancelled, you will be charged a deemed fee by the barrister, and the cost of a future hearing.

Disputes can drag on for a long time before getting to Court. While the dispute rumbles on towards a hearing, you will be expected to commit a huge amount of time, energy, and money to maintain your legal position and prepare for the hearing. So, mediating early can save you huge sums of money.

To avoid court

Mediation gives parties to a dispute an alternative to the traditional expensive and risky route of litigation. Parties enter into negotiations to find an agreement. Anything can be tried/ offered to make a deal or withdrawn if it is not acceptable without endangering a party's formal position.

Why Mediate instead of going to court?

When in mediation, you are in control of the process, and you can reach an agreement based on the interests of the parties. When you go to court to resolve an issue, the Judge will make a judgement based on the law, and the interests of each party may not be considered.

Mediation allows you to stay in control. You have greater control over the decisions you make, unlike the court route, where a Judge decides for you. In mediation you can decide how you want to resolve the dispute. You do not have to accept a proposal if you are not happy with it.

Mediation can help to maintain relationships. Going through Court is very polarising and will put pressure on relationships. Mediation focuses on communication and finding solutions that work for everyone.

Disputes can be resolved by considering the parties interests rather than legal rights.

The mediation process:

  • is confidential.
  • no mediation notes are retained.
  • offers are without prejudice.
  • unsuccessful offers were made cannot be disclosed outside of the mediation.
  • the outcome is private, unless parties agree otherwise and/or other parties need to be informed so that payments/ actions can be taken such as orders being drawn up.

Civil and commercial parties are not committed to a negotiated deal until a written agreement is drawn up by the parties or a Tomlin Order is prepared by the parties Solicitors, and signed by both parties.

In workplace and community mediation, the parties come up with a written or verbal agreement.

Where the Courts feel mediation should been considered and one party unreasonably refuses. The Court might bear this in mind when making a judgement, in relation to costs.

Mediation is a very successful method of resolving disputes and offers a cheaper route to justice than the court system.

Is there a right time to mediate?

There is not a wrong time to mediate. Mediation can take place at any time before your case reaches a final hearing.

The best time to mediate is as soon as you can . This will help reduce the amount of time and money spent on the dispute. Before the parties become entrenched in their legal positions and before large sums have been spent on legal expenses.

How long does mediation take?

Both sides may come to an agreement in a couple of hours, or it might take more than a couple of sessions. Most civil mediation meetings are concluded in a day.

What happens during mediation?

This will vary depending on the type of mediation. In general, the mediator will talk to both sides separately and privately to hear their version of events. Mediators are there to assist with negotiating a settlement.

During the course of the day, the civil mediation process will provide you with the best possible chance of negotiating a mutually agreed solution. Once agreed, you will both draft and sign a legally binding mediation agreement which sets out the terms of the solution you negotiated together. The mediator is not involved in the drafting of this agreement. This is to ensure complete impartiality.

Do I have to be in the same room as the person I am in mediation with?

You do not have to be in the same room as the other party you are in dispute with. The Mediator will use private rooms to help you resolve your disagreement without direct contact.

Usually, the parties book three rooms. The larger room, both parties usually attend to state their opening statements. Thereafter parties are in smaller separate rooms. If settlement is achieved both parties will attend the larger room for them or their lawyers to draft the agreement.

Who drafts the agreement?

When a settlement is reached. The settlement agreement must be recorded in writing in the agreed terms by the parties themselves. The mediator will play no part in the writing of the settlement agreement or signing of the agreement.

Who signs the agreement?

The settlement agreement must be signed by all the parties and their lawyers, and must state the agreed outcome of the mediation.

What is in the agreement?

The settlement agreement must state the agreed outcome of the mediation. Where legal documents may be required to be drawn up at a later date. It should be clearly stated in the agreement. The settlement agreement will need to clearly mention if  legal documents - draft order, contract, undertaking or other document will need to be drawn up at a later date.

Are mediation agreements legally binding?

In civil and commercial mediation any written agreement is legally binding. However, workplace and community mediation, the agreement is not legally binding, but is made on good faith.

What happens if there is no agreement?

You might have made good progress in the mediation, but you did quite reach a settlement. In this situation it can be helpful to take a break to think things over, then resume mediation in a couple of days.

Who pays for mediation?

Who pays for mediation will depend on the type of dispute. Generally both sides pay an equal share of the mediation fee, room /venue costs, refreshment costs, mediators travels and accomodation costs.

What kind of disputes are suitable for mediation?

Must types of disputes are suitable for mediation, here are few examples:

  • Professional negligence.
  • Professional disputes - invoices and services.
  • Personal injury.
  • Deal mediation.
  • Breach of contract.
  • Consumer disputes.
  • Community disputes.
  • Money disputes.
  • Invoice/ bill disputes.
  • Bankruptcy.
  • Wills, probate and Inheritance disputes.
  • Trust disputes.
  • Charities disputes.
  • Guardianship disputes.
  • Land and property disputes.
  • Boundary issues between neighbours and landowners or users.
  • Neighbour disputes.
  • Landlord and Tenant disputes.
  • Intellectual property disputes.
  • Domain name and passing off disputes.
  • Exit agreements.
  • Elder mediation and disputes regarding arrangements between family members.
  • Company Director disputes.
  • Family Business disputes.
  • Partnership dissolution's and creations
  • Reputation mediation
  • Building and contractor disputes.

Under Civil Procedure Rules (Pre-Action Protocol), the Courts require parties to have actively engaged in other forms of dispute resolution before preceeding to to issue Court Proceedings. Penalties can be imposed if they win or lose at Court.

When is civil and commercial mediation unsuitable?

There are some circumstances when mediation from the outset may not be suitable.

There are:

  • One of both of the parties are not willing to mediate/ negotiate.
  • The dispute may not be capable of being negotiated.
  • There may be extreme conflict and an imbalance of power that the mediator cannot redress.
  • One or both parties feel forced to attend.
  • Mediation has already been fully attempted.
  • When a point of law needs to be decided on by a Court.
  • Where injunctive relief is needed to protect one party.
  • Where either party displays a lack of commitment.
  • Where either party is unable to accept the situation or is unable to negotiate.
  • A party is simply not ready to let go of their position.

Are mediators regulated?

There is no statutory regulation requiring mediators to be regulated. The Civil Mediation Council (CMC) runs a voluntary system of regulation for Civil and Commercial and Workplace mediators. Mediators registered with the CMC abide by a Code of Conduct having been trained to an acceptable industry standard, have suitable insurance, carry out continuing training and development, and offer a complaints process.

Useful information:

The Mediation ProcessAdvantages and Disadvantages of Mediation

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