Civil and Commercial Mediation: process
Mediation is much less formal than going to court or even arbitration. However, it does need a structure to enable the mediator to support the parties in their negotiations. People Mediation uses the Chartered Institute of Arbitrators’ Mediation Rules and Guidelines. We do this as Simon Robinson is a Member of the Chartered Institute (MCIArb) and as the Institute’s Rules have been used successfully in many mediations both within the UK and internationally. This provides you with a recognised, clear standard for the mediation.
Good legal advice can help parties to understand all of the legal issues in a dispute, including the implications of not reaching a mediated agreement. It is advisable for parties to take legal advice and they can do this at any stage. You can have your legal representative present in the mediation for advice and to help you present your position.
The mediation process
Mediation uses a flexible process which encourages everyone to engage and discuss the issues. You can represent yourself at mediation, although you can take along a legal or trade union representative if you wish. Mediation is less formal than a court or tribunal, and you are free to participate by explaining your view, disclosing information and offering concessions. Mediation is both 'without prejudice' and is absolutely confidential. This means that nothing which takes place in the mediation, including any concessions you make, can be referred to any subsequent tribunal case. It is essential that you come to the mediation with the authority to settle the dispute and be prepared to negotiate.
Either party can decide to try to mediate. However, both parties will need to confirm that they agree to the key mediation documents which are necessary to start the mediation process. These documents are the letter appointing the mediator and agreeing the fees, the Agreement to Mediate and the Mediation Terms and Conditions. These cover key points such as the mediation procedures, fees and costs, exclusion of liability, relevant law, legal representation, authority to settle the dispute and the confidential and without prejudice nature of the mediation. All parties will need to sign the Agreement to Mediate prior to the day of mediation to confirm they have the authority to settle the dispute and are willing to negotiate. Please contact People Mediation for more information.
It’s usual for the parties to have a pre-mediation telephone conference with the mediator. This is to address any key points and to ensure that the mediator is aware of all the issues. This is included in the mediation fee.
A typical mediation will usually take place on one working day. There are some actions which will take place prior to the mediation. These are for the parties to send a short statement to the mediator which sets out their respective positions, and to agree the essential documents which the mediator will read in advance. The mediation can take place in a venue convenient for both parties. We mediate from locations in Central London and also have access to facilities in South London. We regularly mediate in locations in Lambeth, Wandsworth, Battersea, Balham, Streatham, Clapham, Croydon, Westminster and Central London. Alternatively, the mediation could take place at your own premises.
The day of the mediation starts with a joint meeting between both parties which is facilitated by the mediator, and can include the parties’ representatives. Each party will then retire to their own rooms and the mediator will move between each room. Each party is based in their own private room to facilitate private discussions. The mediator will explore the issues with each side in private to help them work towards a resolution.
If the mediation ends with an agreement, this will be put down in an agreed written document. It’s important to remember that any agreement reached in mediation is not binding until it is reduced into a written document and signed by the parties. If mediation doesn’t end with a complete agreement, it may be possible to agree some points. This can be helpful as it narrows the dispute and can save time and costs.
It is good practice for a mediator to contact parties after the conclusion of a mediation. This enables the mediator and the parties to provide feedback and to follow up on any outstanding issues.
Simon Robinson is trained in providing online mediation and can provide mediation sessions and conference calls via Skype. If you would like to discuss an online mediation session, please contact us.