The search for another way of settling disputes has been around for some years now. Generally we know it as Alternative Dispute Resolution, or ADR. It can take many different – but essentially similar – forms. In this short piece, I want to talk about Mediation. In so doing, I acknowledge that some of the text is taken from the website of the Centre for Effective Dispute Mediation (CEDR) in the UK, which is my professional association.

The neutral mediator helps the parties to reach a negotiated settlement. The mediator does not impose a settlement on the parties. Indeed, the mediator usually will not express a view on the merits of the dispute but will press each side to examine closely the reality of the position it is adopting.

2. Confidentiality and privacy

Nothing said in the mediation and no documents prepared specifically for the mediation – except for those that would have to be disclosed in court in any case - can be disclosed outside the mediation process. The fact that a mediation has taken place at all is confidential to the participants, except of course where the court has ordered mediation.

Unless the court has ordered the parties to mediate, the mediation process is entirely voluntary. The parties decide whether they want to go to mediation and any party to the mediation can decide to withdraw once the mediation is under way – or even before it starts!. Of course, the mediator will do his/her utmost to persuade the parties to stay with the process until completion.

As I said in 3. above, the process of mediation is not binding, in the sense that any party is free to bring it to an end at any time. Once an agreement has been reached however, that is then written down and signed by the parties. At that point, but not before, the parties have a binding settlement.

Usually a whole day is set aside for the mediation, in some convenient and neutral venue. The parties arrive early in the day and should be prepared to stay as long as it takes to reach agreement. Sometimes this can take more than one day; usually one day is enough – although it is often a very long day!.

The mediator controls the process of the mediation – but not its outcome. That responsibility remains with the parties. He/she will generally conduct the mediation by holding a series of joint meetings between and private meetings with the parties. In these meetings, the mediator is trying to facilitate communication, to assist the parties to reach a more comprehensive understanding of the real issues in dispute and to move them towards a dispassionate, commercial and pragmatic assessment of the possibilities for a negotiated settlement. Often that entails letting the passions flow, at least in the early stages.

Each party should be represented by a person who has full authority to settle and that person should be present throughout the whole mediation session. The great majority of mediations are successful, CEDR quoting a figure of 80-85%. When they do fail, it is often because the person attending the mediation does not have sufficient authority to do the deal when the deal finally emerges. That may well be late in the day. It usually is. So the ideal is for each party to be represented by its principal and for that person to stay the course.

The size of each party’s team attending the mediation should be kept to the minimum effective; between two to four persons is best. It is usually helpful for the parties to have their legal advisers present. But this is not essential since the aim of the process is to find a commercial settlement, not to adjudicate on the legal merits of the parties’ positions.

Compared with legal proceedings or arbitration, mediation has these advantages.

Because it is usually concluded within the day, it is quicker

Because it reaches a quicker conclusion, it is cheaper

Because it is a negotiated, not an imposed solution, the parties remain in control

Because it is a negotiated solution, it is more likely to be a win/win one, rather than a win/lose one

Because it is a negotiated solution, the relationship between the parties is usually preserved

Because the parties’ relationships are preserved, they can continue doing business together in the future

Despite its many advantages, some lawyers are still reluctant to advise their clients to mediate, because they fear that it may be interpreted as a sign of weakness. They may also have other reasons!

Mediation is not for wimps. It is a rigorous and tough negotiating process where all the key issues can be explored and challenged with the help of an independent neutral. Some would say it is the ultimate in reality testing. To offer mediation is therefore more an expression of confidence in one’s position than the reverse.

At the end of the day, I liken Mediation to healing, whereas legal proceedings and arbitration lead to judgement. Who wants to be judged when we could be healed? Some maybe, but not the great majority of us.

David Martin-Clark 27 May 2001

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