At any stage in a dispute, whether or not proceedings have been started, the parties can agree to refer the dispute to a mediator, who will advise on the likely length of time for the mediation and the cost. Most mediations take between 3-8 hours and the objective is to achieve agreement on the day.
The location can be arranged to suit the parties. Factors include cost, travel arrangements and the number of people attending. We use a number of venues and can advise parties on where might be suitable for their particular dispute.
Coronavirus has led to a greater use of remote mediation and since spring 2020 we have conducted all of our mediations by telephone or online using Zoom. For those not familiar with Zoom we are happy to give details of how it works. You can visit the Zoom site and download the software needed by visiting zoom.us. Whether it’s face to face, Zoom or telephone mediation, the same basic structure we describe below will apply, adapted to each individual mediation.
It is worth saying that online mediation can be helpful for complex disputes – for example, multi-party probate disputes – because they can take place over a period of days rather than hours without significant extra costs being incurred. This allows the parties time to fully explore the legal and financial implications of any proposals for resolution put forward before agreement is reached.
The mediation is held on a date convenient to both parties. On arrival the parties are welcomed by the mediator and allocated separate rooms – real or virtual “Zoom rooms”. The mediation will usually start with a short joint opening session where we set out the ground rules for the day and invite each party to make brief opening statement outlining the dispute. For telephone mediations we will hold an initial conference call with time for each party to speak.
The parties will then return to their separate rooms (or leave the conference call), consider what has been said at the opening session and begin looking at the issues and how they may be resolved. The mediator spends time with each party in turn, as many times as necessary, to explore the dispute in more detail and to see whether there are any areas where there may be a basis for agreement.
In these private sessions, discussions between the party and the mediator are confidential. This means that the parties can be completely candid in a way that would not be possible in litigation, enabling the mediator to see easily potential areas of agreement and to explore fully with each party individually whether there is a possibility of reaching such agreement. The mediator will reveal information to the other party only with permission of the party disclosing that information and will seek that permission where it is likely to bring the parties towards settlement.
Nothing that happens in the mediation is binding unless settlement is reached, at which point it is written down and signed by the parties. Until this happens, everything is “without prejudice” – that is, no information exchanged between the parties during the course of the mediation in an effort to reach settlement can be referred to in any ongoing litigation.
We conclude the mediation concludes with a final joint session where the mediator will summarise the position reached. When an agreement is reached it is drawn up and signed, and can be enforced through the courts if necessary.