Mediations are free from all procedural rules and can be carried out in any manner agreed between the parties, whether through private meeting, telephone or otherwise. This enables the parties, together with the mediator, to explore possible solutions that may not be available in court.
Mediators do not sit as judges or arbitrators. They are not there to hand down a judgment or make an arbitral award. Nor will they make findings of fact or law. What they will do is discuss with the parties their respective positions fully, usually in separate rooms, in order to try and find common ground and ensure that everyone is being realistic about the chances of success and the potential costs involved.
Mediation cannot take place without the agreement of all the parties. Such agreement is being reinforced by the courts which are now prepared to penalise in costs those parties who unreasonably refuse mediation.
Apart from the mediator, nobody needs to attend other than a member of each party who must be authorised to settle on behalf of that party. In practice, parties usually have some form of legal representation with them.
How does mediation work?
There is no formal process. The parties can decide on whatever format they think fit. However, usually mediations take the following route:
- Having selected a mediator (see below), the parties all sign a mediation agreement. This sets out the rules under which the mediation will be conducted and by which the parties agree to be bound. XXIV Old Buildings has a standard mediation agreement which can be downloaded from our website.
- Immediately prior to the mediation, each party provides the mediator with a mediation statement (ie a summary of their case) and any absolutely essential documents.
- The mediator will usually start the day by gathering all the parties together in one room. He will explain the process of mediation and the fact that everything is “without prejudice” and confidential. This means that nobody can refer to the mediation afterwards to any third party. The mediator will usually give each party the chance to make a short (say 5 minute) presentation of their position.
- The parties then withdraw in to their own rooms and the mediator spends the rest of the mediation shuttling between them all. Nothing said by a party to the mediator can be repeated to another party without express consent.
- If a settlement is reached, a mediation agreement will be drawn up. This is a binding contract. If there is no settlement, then the dispute will continue along conventional channels but without reference to anything that may have been said or discussed during the mediation.
How long does a mediation take?
The parties decide in advance on the length of the mediation, guided by the mediator. Although very complicated and multi-party disputes may be set for 2 or 3 days (or even more), the majority of mediations take 1 day. It is, however, usual for mediation to last well into the evening/night/early hours. The parties should therefore ensure that they have no commitments which will interfere if discussions continue late.
How do I choose a mediator?
The parties can all suggest mediators, usually exchanging profiles, before settling on one individual. It is not necessary to have a mediator with particular experience of the area in dispute. However, in some cases, for example trust, probate and estate disputes, relevant expertise can ensure that any settlement reached will be valid and binding on all the parties involved.
XXIV Old Buildings can provide mediators with a great deal of experience, skilled at absorbing huge amounts of data and dissecting that data down to the pertinent facts. At XXIV Old Buildings, our members deal with all manner of business and personal disputes, both of a national and international nature. Our members are therefore perfectly placed to deal with the vast majority of mediations.
How much will it cost?
Every mediator will have their own terms. At XXIV Old Buildings, the mediator’s fee is usually based on an agreed hourly rate which we will discuss with you in advance.
Mediation costs are usually borne equally between the parties.
What happens if one party to the mediation agreement breaks it?
A mediation agreement is a binding contract which can be enforced through the courts like any contract. If the mediation agreement has been incorporated in a court order, as is usual if there any proceedings on foot, then this makes enforcement a great deal easier and quicker.
A party may seek to undo the agreement but the instances in which this is possible (eg fraud, undue influence) are extremely limited and the courts remain reluctant to become involved without any compelling evidence to persuade them otherwise.
If you have any further questions, please contact the practice management team on 020 7691 2424 or firstname.lastname@example.org.