Mediation is a negotiation between two parties in dispute. It is voluntary, confidential and without prejudice, meaning that what is discussed at the mediation cannot be used in court proceedings.

The mediator is a neutral third party who works with the parties and assists them in reaching a settlement. The mediator does not act as a judge, and will not impose an opinion. The mediator does not act as a legal advisor but rather they are there to facilitate constructive negotiations between the parties.

Throughout the process the parties are in control and they will ultimately decide on what basis they will settle. In the event that settlement is reached, the settlement will be documented in writing at the end of the mediation. That document will become legally binding on all the parties involved. However, please note that in some land and property cases, it may not be possible to complete all the necessary formalities on the day.

There are a number of important advantages to mediating that the court process cannot offer.

Court proceedings can be protracted and economically unviable. Mediation can help prevent the matter escalating into costly litigation. Parties participating in mediation generally save a substantial amount of cost not only in respect of legal fees but also in the respect of their own time avoiding any further financial detriment to business or personal finances.

The parties are not restricted to outcomes that can only be achieved in Court. The parties can reach creative agreements or arrangements. This flexibility can be particularly useful when dealing with property matters, where matters may not be as clear.

Court proceedings can also be a lengthy process and it is not unusual for a matter to take the best part of a year or more before being listed for trial. Mediation can resolve an issue in one day, or at very least narrow down the issues in dispute.

With mediation, the parties are in control. There is litigation risk when entering court proceedings, and any outcome is not certain. With mediation, the parties can pick their mediator, the venue, and potentially what issues they want to discuss. Whereas in a court room you cannot pick your judge, and the issues discussed are limited to what is in dispute.

Lastly, the Court is now actively encouraging parties to mediate. Parties who unreasonably refuse to mediate may be liable to cost sanctions.

Mediation can happen at the inception of a dispute or at anytime before trial.

There is no ‘right’ time to partake in mediation, however the earlier it is conducted, the greater chance of avoiding unnecessary legal fees and the stress of litigation.

If proceedings have commenced, the parties can agree a stay to allow mediation to take place.

A mediator can be contacted by an individual direct or through their solicitor if they have legal representation. 

Once a mediator is appointed, they will send a mediation agreement to all parties. The mediator will also have an initial brief call with each party prior to the mediation. 

The fee will also be payable in advance of the mediation and an invoice will be sent to each party. It is usual for the fee to be split equally amongst all the parties and paid prior to the mediation taking place.

Each party will be asked to provide the following to the mediator at least 3 days before the mediation if possible:-

• A case summary/position statement. This is a short paragraph or two detailing your position, highlighting the main issues for you and what you would like to achieve from the mediation.
• A bundle of documents that are relevant to the dispute.

If the mediation takes place in person, it will usually be in one of the party’s legal representative’s offices. If neither party has legal representation, then office space will be arranged at no extra fee.

If, for example, the issue is a boundary dispute between two neighbours, it may be more beneficial for the mediation to take place between the two properties, so that the mediator can see the land in dispute in person.

The day itself will run roughly as follows (if at offices):-

• The mediator will generally attend the venue early to ensure that the rooms are properly set up and there are no issues.
• The mediator will have a private and confidential discussion with each party (and their representative) and run through the process and answer any questions they may have.
• If appropriate the mediator may arrange a joint meeting in which the parties can put the position across to the other side whilst the mediator is there.
• There will then be a series of confidential meetings with each party throughout the day. The mediator may also arrange further joint meetings with all the parties and/or their legal representatives.
• As the day goes on, offers will be put forward by either side and will be negotiated between the two. The mediator will act as a facilitator between the two parties.
• Once an agreement is reach it will be put in writing and signed by the parties. Once it is signed it will be binding on all parties.

The majority of matters that go to mediation do settle. If they do not, then it is likely that mediation will have, at the very least narrowed the issues in dispute, providing a platform for further negotiation in the weeks that follow.