There are now very few areas of law and practice around the world where mediation has not been used to resolve disputes. In addition to mediation in matrimonial and family cases, mediators regularly deal with disputes involving:
- Commercial contracts (including cross-border cases)
- Construction
- Personal and real property
- Inheritance wills and trusts
- Employment
- Personal injury and clinical negligence
- Public law
- Debt and insolvency
- Intellectual property
- Professional negligence.
Mediation has been successfully used to settle disputes:
- Before issue of proceedings
- At any stage during proceedings
- During trial and between end of trial and judgement
- During the appeal process
- Where there are evidential disputes of law, fact or opinion
- Where liability and/or causation is in dispute
- Where there are fraud allegations
- Where one party or their legal team has opposed it
- Where the interests of children or patients are involved
- In group litigation with multiple claimants or defendants
- Involving very significant sums of money (multi-millions) or no money at all
- Where the parties start very far apart.
No easy assumptions can be made over whether or not a case is unsuitable for mediation. Nearly every case is likely to be suitable for mediation at some time in its life cycle and that the right question to ask is not ‘is it suitable’ but ‘is it ready?’
Cases sometimes said not to be suitable for mediation include:
- Those where a legal precedent is required by one or both parties, though mediation may be used when parties seek to avoid an adverse precedent
- Where a peremptory court order is required, such as injunctions – though mediation can help to settle the rest of the litigation and dispense with proceedings in relation to the peremptory order
- Where summary judgment is likely – though mediation might help where it is unlikely to be granted or actually refused, or in rendering an application unnecessary
- Where negotiations are proceeding satisfactorily – though mediation may speed up negotiations or enable a party to overcome a hurdle if it arises or give a party a guaranteed ‘day in court’
- Where publicity is actively sought – though mediation can lead to a public outcome if the parties agree.
For more detailed guidance on assessing case suitability for mediation, see Appendix 1.
Mediation is a flexible process conducted confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference, with parties in ultimate control of the decision to settle and the terms of resolution.
While the core elements of mediation are few in number, there are many important variable features that allow mediation to be designed for the needs of each dispute or conflict it addresses. The process can be structured to accommodate a wide range of circumstances such as:
- The degree to which the parties enter into mediation of their own volition, are influenced by the courts, enter the process as a condition of a contract, or as a consequence of a previous dispute resolution process, such as neutral evaluation or expert determination, where a crucial legal or technical expert issue has needed to be settled first
- The considerations of the choice of mediator(s) by the parties
- The professional background, expertise and skills of the mediator
- The extent and nature of the mediator’s interventions with regard to recommending or persuading the parties (while the mediator is a neutral figure, in some circumstances they may take on a more evaluative role if both parties clearly ask for this to happen)
- The extent to which past conflicts or disputes are brought to the mediation and future interests are taken into account
- The logistics of handling multiple parties or multiple jurisdictions
- The degree of confidentiality of the process.
Mediation is not a ‘quick fix’ form of justice. The evaluation and preparation of a party’s case is as important for mediation as it is for a court trial.
How are disputes referred to mediation?
Referral of a dispute to a mediation service provider or mediator may be as a result of:
- Voluntary referral by all parties
- Referral by one party who asks the mediation service provider to obtain the consent of the other the party(ies) to participate in mediation
- Responding to a Court Order or a recommendation by a judge before trial (See the Administration Process of the National Court-Annexed Mediation Service in Appendix 1)
- The provisions of an Alternative Dispute Resolution (“ADR”) clause in a contract requiring the use of mediation as a step in the parties’ agreed dispute resolution process.
What happens in mediation?
Mediation is not a fixed process. It varies according to the type of case, the parties, the content and the timing before trial or other statutorily based determination processes. However, although there are many shapes to mediation, it is convenient to describe the process as involving five phases consisting of any number or combination of joint and private meetings.
Preparation
Preliminary contact between the parties and the mediation service provider (or Mediator) to:
- Agree to mediation
- Agree terms of mediation including dates, duration, location, representation and participation, legal framework, costs, documentation, authority to settle
- Agree the terms of the mediation agreement. Exchange brief written summaries of the case submitted by the parties to each other through the service provider or mediator
- Have confidential consultation with the mediator by telephone to address concerns or issues for the mediation or possibly a pre-mediation meeting with all parties.
Opening
Initial joint meeting at which:
- The mediator clarifies the key aspects of the mediation process and how the day might unfold.
- The parties present a summary of their case to each other
- Issues and concerns are clarified.
Exploration/negotiation
Private, confidential meetings between the mediator and each party separately to:
- Examine each party’s issues and needs: what the other party needs from the day as well as what you need
- Encourage openness about weaknesses as well as strengths of legal and/or commercial positions
- Identify the best alternative to a negotiated agreement (BATNA) and the worst alternative (WATNA)
- Explore the history of any previous settlement negotiations
- Make your case clear to enable the mediator to articulate it when meeting the other team
- Discuss options for settlement.
Exploration and negotiation
Joint meetings as appropriate at which parties may:
- Set the agenda
- Negotiate directly
- Discuss differences, particularly in understanding of fact or expert opinion or likely legal outcome
- Have discrete issues discussed by experts or sub-groups
- Agree adjournment for evaluation
- Discuss the effect of non-settlement on subsequent litigation.
Conclusion and enforcement of settlement agreements
If an agreement is reached at the mediation, an unrepresented party may request, or the mediator may suggest, a space of a few days to seek appropriate legal advice and to confirm the acceptability of any draft agreement reached at the mediation.