What is mediation?

Mediation is a facilitated negotiation to attempt to resolve disputes without the parties getting bogged down in expensive, time consuming court proceedings. The mediator is a neutral facilitator who is there to help the parties to reach agreement if possible. The mediator is not a judge – they will not impose a solution or reach a conclusion as to the rights and wrongs of the claim. However, they will control the mediation process and the parties will be required to sign a mediation agreement which sets out the agreed rules of the negotiation.
Key features of mediation:

Mediation cannot be imposed. It can only take place with the consent of both parties. However, if one party unreasonably refuses to consent to mediation, they can be penalised, if court proceedings follow, by adverse costs orders whatever the eventual outcome of the case. So, it is almost always a good idea to agree to mediation before going to court.

Mediation is confidential and without prejudice. If an agreement is reached as a result of mediation ( about 80% of cases referred to mediation settle at or shortly after the mediation) then the agreement is normally reduced to writing, signed by the parties and becomes a binding contractual agreement which settles the original dispute. If, however, no agreement is reached as a result of the mediation, nothing said or done in the course of the mediation can be used against any party to the dispute. It is as if the mediation had never taken place. So, there is no risk in making concessions during a mediation to try to reach an agreement. If no agreement is reached, then any such concessions are not binding and cannot be used against the person making them in subsequent court proceedings.

The mediator is in a unique position to help the parties. Mediations can take various forms including face-to-face negotiations, telephone mediation or even on-line mediation. However, they all have one thing in common. Anything said to the mediator by one party in private is confidential between the mediator and that party. The mediator cannot and will not reveal any confidential information to the other party without the express consent of the party providing the information. So, the parties can be completely frank with the mediator in private, safe in the knowledge that nothing they want to keep private will stay private unless they expressly agree that the mediator can communicate that information to the other parties.