Brian Evans Answers Questions About Mediation

Brian Evans, head of Dispute Resolution is a qualified mediator. He answers our questions about what mediation is all about.

What is mediation?

Mediation is a way of resolving disputes without going to court. The parties agree to appoint a neutral person (mediator) to help them negotiate. Mediation offers the parties to a dispute the possibility of resolving their differences and reaching a solution of their own choosing. It is one of a range of different dispute resolution techniques, together with others such as arbitration, adjudication, expert determination, early neutral evaluation, which are often collectively referred to as “alternative dispute resolution”.

Why mediate?

Mediation offers a real opportunity to resolve a dispute quickly and in more creative ways than would be possible through litigation.

Where the dispute is between parties who want to retain a relationship in the future (whether that is a business relationship, a relationship between employer and employee, between neighbours or other personal relationships) mediation is also far more likely to help maintain or salvage that relationship than litigation.

The rules of court actively require the parties to consider whether some form of alternative dispute resolution procedure would be more suitable than litigation and the parties can be required by the court to provide evidence that alternative means of resolving their dispute were considered. The courts take the view that litigation should be a last resort. 

The Court of Appeal has stated that, although parties cannot be forced to go to mediation, the successful party can be deprived of some, or even all, of its costs if it has unreasonably refused to mediate. 

How does it work?

The mediator meets with the parties (and their representatives if they have them). Usually this will start with a joint meeting where all parties are able to have their say in front of the others. Normally, a series of private meetings are held with each party, and further joint meetings as appropriate, to clarify the issues, challenge the parties, help them to test the strength of their cases, find common ground between them, and discuss settlement. Typically, all these meetings are held on the same day. Depending on the amount in dispute, and the issues involved, the mediation might last from 2-3 hours, up to a full day. In very large cases, more than one day might be required.

Because the mediator is neutral, he/she may be in a much better position to help the parties focus on the real issues, assess their case realistically, work through the emotions which might be involved in the case, help the parties settle without losing face, and help to suggest new areas in which to explore settlement. 

Will the mediator tell me if I will win at court?

The mediator’s job is to work with the parties to try to help them to reach their own agreement. It is not his/her role to advise either party about the merits of their case.

Can the mediator impose a settlement?

No! Mediation is a voluntary process whereby the parties are assisted in agreeing their own resolution.  The mediator cannot impose a settlement. Any party is free to leave at any time.  However, the mediator will try hard to persuade the parties to continue negotiating as long as he/she continues to believe that settlement is possible. If the parties do reach an agreement at the mediation, that will form a binding contract between the parties which can be enforced in court (though usually only when that agreement has been set out in writing and signed by the parties).

Is mediation confidential?

Yes! Anything said in a mediation cannot be referred to in court if the dispute does not settle. This means that mediation is a safe environment within which the parties are free to discuss things and explore options without prejudicing their legal position. 

In addition, throughout the mediation, the mediator cannot disclose anything said to him/her in a private session to the other party unless authorised by that party to do so.

Does mediation work?

Over 70% of cases referred to the leading UK mediation service settle. In the event that mediation does not completely resolve the issues, the parties to a dispute still have all avenues of dispute resolution open to them, and mediation will usually have narrowed the issues, meaning that the costs of litigating are often reduced.

How do I find out more?

To find out if mediation would be suitable for your dispute, please contact Brian Evans on 01952 211006 or post a query to our website