What is mediation?
The aim of mediation is to help you reach an amicable agreement. Additionally, it’s often a requirement of the court to prove that you’ve tried and exhausted this avenue (or at the very least attended a mediation information and assessment meeting, also referred to as a MIAM in family matters) before proceeding any further.
The mediator will not take sides and is there to facilitate the progression of the conversation. They can help you discuss anything involved in the proceedings, such as, in the case of matrimonial disputes, arrangements for children, who is to issue the divorce petition, and long and short-term financial arrangements. In civil litigation mediation, the mediator will gently assist each party to see the dispute from another perspective and bring forward the more important issues.
What are the benefits of mediation?
- Cost-effective – resolving a dispute through mediation can be much less expensive than going to court if it works
- Confidential – mediation allows the dispute to remain private unlike in court, and it can also be less disruptive to a business or a family
- Less formal than going to court – fewer people are involved in mediation than when you go to court
- Forward-looking – working together in mediation can benefit professional relationships and build a strong foundation for any future negotiations
- Effective – mediation has grown in popularity because it has a high settlement rate
- Efficient – disputes can be resolved faster than going to court. Statistics indicate that more than 70% of mediation cases in the UK settle either on the day of mediation or shortly thereafter
How much does mediation cost?
Charges for mediation vary according to the individual specialisms required. Some mediators charge by the hour, while others take a fee per session. Some may apply ‘sliding scales’ instead or offer a fixed-fee package.
When you go to the first meeting (the MIAM), the mediator will be able to give you an estimate of how much mediation is likely to cost, based on their understanding of what it is you hope to accomplish.
However, it’s important to understand that the cost of mediation is far less than that of going to court or pursuing further legal proceedings. It also takes a lot less time.
Furthermore, legal aid may be another option available to one or both parties. Each person will be assessed individually. Even if only one person is able to get legal aid, the fee for the MIAM and the cost of the first full mediation session will be covered for both parties.
What are the consequences of not mediating?
Mediation is a process aimed at reducing costs, stress, and encourages open discussion. In the employment tribunal, or civil litigation cases, mediation is typically looked upon favourably by judges as it shows both parties in the dispute have tried to reconcile.
Conversely, failing to take up a fair offer made through mediation during an employment or civil dispute, will more often than not, be looked upon negatively.
As made clear by multiple recent case examples (especially during the COVID-19 pandemic, though also thereafter in the first nine months of 2020), courts have become increasingly intolerant in reaction to excuses given to them for not mediating.
This could be a result of its ongoing proven effectiveness. Still, there are also signs that they are now not only recommending mediation but also increasingly looking to refer to the written documentation of that process before making their decisions.
These examples have included divorce and separation cases, though also proceedings surrounding confidentiality, conflict of interest and ‘right to life’. This clearly shows that judges still feel mediation has an important role in encouraging safe and frank communication – even where resolution may be tough to achieve.
But the costs can extend beyond the result itself and into financial penalties too. There has been a raft of recent cases whereby the excuses given for not mediating have ultimately led to the case not only going against the party that refused mediation, but the penalties being far more costly than they would otherwise have been, were they to have behaved in what the judge deemed “a more reasonable or cooperative fashion”.
It has also even happened that a case has been settled, and the winning party has then gone back and sought indemnity costs for the whole claim, on the basis that the guilty party had refused to mediate or to enter settlement discussions. These costs were duly awarded.
What are the reasons that mediation might fail?
1. Bringing the wrong people into the room
If you have the wrong team working for you, the mediations are in danger of being ineffective. Mediation works best when all parties can negotiate – so you need the right team in place to make sure this can happen.
It may be the case that mediators have met and had grievances in the past, which should not be allowed to affect your case.
But also, if you don’t bring someone to the mediation who has authority, is accustomed to making tough decisions, and can make firm negotiations without vagaries. In this instance, you’re starting on the wrong foot.
2. Poor preparation
If your case is important enough to require mediation, it’s important enough to prepare for. Failure to do so will only work against you.
Yet it remains commonplace that parties have failed to prepare (and therefore prepared to fail) – particularly in cases with large corporations or public bodies. This renders the mediation a waste of time and resources.
3. A lack of understanding regarding the consequences
It is fairly normal for one party to enter the mediation process with no intention of moving from their original stance whatsoever. But this attitude is entirely documented and can be referred to and taken into consideration later down the line, should the case go to court.