Mediation is a type of alternative dispute resolution (ADR) encouraged by the overriding objective in the Civil Procedure Rules. The courts have a duty to consider encouraging and facilitating the parties to use an alternative dispute resolution procedure if the court considers that appropriate.
Lord Neuberger speaking on BBC Radio 4 in April 2020 said that mediation is “A sort of organised settlement discussion trying to come to an amicable arrangement which may not be an outcome which the law would provide but may be a sensible, practical arrangement which can be arrived at quickly.”
Whether or not a party has agreed or refused mediation before coming to court is a factor which a court can consider when deciding to award or refuse costs in civil court proceedings. It is estimated by CEDR that the commercial mediation profession saves businesses around £3 billion per year in wasted management time, damaged relationships, lost productivity and legal fees.
The mediation process
Each mediation is different, but in most the parties describe the dispute from their point of view and in their own terms. Both sides explain how they feel it could be resolved. The mediator listens and guides the parties impartially, helping them reach a workable solution by generating and exploring possible solutions.
The mediation process is confidential and without prejudice. The mediator will not disclose confidential information to the other party, or anyone else, without your permission. The mediator may take notes but at the end of the mediation these are normally destroyed.
The mediator is unbiased and helps focus attention on the relevant issues. The mediator is not there to give legal advice or to be a judge, court or tribunal, although at the end of the process it is often possible for the parties to agree a legally-binding settlement agreement.
It is also consensual, meaning that whilst parties have to agree to enter into mediation, they are not compelled to do so.