Civil Mediation

What is Mediation?

Mediation is a voluntary process where the parties involved in a dispute agree to appoint a neutral third party to assist them in negotiating a settlement. An important aspect of Mediation is that the parties to the dispute retain control of the process and the outcome. The mediator remains neutral and does not make a decision on the issues in dispute and is there purely to facilitate discussion and help the parties work towards an agreement.

When is Mediation suitable?

Mediation is suitable for almost any type of dispute, however, some types of dispute require specific procedures to be followed (for example Family Mediation). Civil and Commercial Mediation covers a wide range of types of disputes including:

• Breach of Contract
• Disputes about Inheritance
• Trust Disputes
• Land and Property Disputes
• Landlord and Tenant Disputes
• Professional Negligence
• Personal Injury

As Mediation is a voluntary process, the parties can choose to attempt it at any stage of a dispute, including before any Court proceedings are issued. Attempting Mediation at an early stage may lead to resolution more quickly and with less costs being incurred. Courts will encourage parties to consider Mediation and can and often do factor in time for parties to attempt Mediation when setting deadlines.

So how does Mediation actually work?

Mediation happens outside the Court process and is entirely confidential and without prejudice. Without prejudice means that whatever may be said or done or disclosed during the Mediation process cannot be referred to the Court in any current or future proceedings. This is a fundamental aspect of Mediation as it allows parties to engage in open and frank discussions without necessarily having to openly concede any particular position or argument.

Step 1: The parties need to agree on who to appoint as Mediator. The Civil Mediation Council has a searchable register of mediators who have had specific training in Mediation to an industry standard.

Step 2: The parties and the mediator would then need to liaise and agree the time, date and place for the Mediation to take place. Depending on the complexities of the dispute, and the number of people attending and their availability it may be possible for the Mediation to take place relatively quickly, or it could be booked sometime in advance.

Step 3: The parties would then normally agree on a bundle of documents that should be provided to the mediator in advance of Mediation taking place. This is to enable the mediator to familiarise themselves with the issues and the respective parties’ positions.

Step 4: At the Mediation there would typically be three meeting rooms (whether in person or virtual rooms if Mediation is being undertaken remotely). There would be a room where the parties may meet together with the mediator to have open discussions and then each party will have their own break-out room where they can have confidential discussions with the mediator.

Discussions that occur in the joint room and anything that is said between the parties in the joint sessions will still be under the banner of without prejudice so cannot be referred to in any subsequent Court proceedings.

It is important to note that the conversations that take place between the mediator and the parties in the break-out rooms are confidential between the mediator and those parties. The mediator cannot take any information provided to them by a party in a break-out room to the other party without the express consent of the party providing the information. This is a fundamental important aspect of mediation as it allows open and frank discussion between the parties and the mediator.

Step 5: If Mediation is successful and the parties do agree terms then those terms will be recorded in a written agreement. The format of the written agreement will be dependent upon the circumstances in dispute but could take the form of a draft Court Order to be sealed by the Court, a Settlement Agreement, a Deed, or a document confirming Heads of Terms that are to be taken forward.

The fact that a Mediation does not result in a settlement does not necessarily mean that it has been a waste of time and money or that the case is not capable of settlement. If settlement is not achieved at the Mediation, then as a result of the discussions that have taken place during the Mediation and information that may be exchanged, it is not unusual for a settlement to be agreed a short while after the Mediation has concluded.

What can Ward Gethin Archer provide?

Joseph Henry is a Director of Ward Gethin Archer and has been a Civil Litigation Solicitor for over 13 years. In that time he has attended many mediations. In 2022 he undertook training provided by the London School of Mediation to become a mediator and is now registered with the Civil Mediation Council.

Joseph understands the importance of listening to the parties in order to identify the issues. Consideration of the issues from a number of different angles and perspectives is often the key to resolving disputes.

If you require further information or would like to book a mediation please either complete the Mediation Enquiry Form or contact Joseph Henry on 01353 646108 or joseph.henry@wga.co.uk