As the Dispute Management team continue with their series of short user friendly blog posts on the litigation journey of a civil or commercial dispute; the teams’ last blog focused on Part 36 offers and offers to settle. This further blog considers ways of reaching a settlement and relates to the areas of law dealt with by our team.

Formal mediation

Formal mediation is a form of alternative dispute resolution (ADR) that is commonly used in the English legal system to resolve disputes outside of Court. It involves appointing a mediator, who is an independent and impartial third person, to help the parties talk through the issues, negotiate, and come to a mutually agreeable resolution of their dispute.

Mediation is a flexible and confidential process. The mediator does not make decisions or impose solutions; instead, they facilitate communication between the parties, help identify common ground, and assist in generating potential solutions. The discussions during the meditation must be kept confidential and cannot be used in future proceedings.

Although the majority of mediators will be practitioners who are regulated by their professional bodies, there is no formal regulation of mediators as a defined group. An advantage of mediation is that there is no Judge, only a facilitator to reach a settlement. This avoids having a “winner and a loser” as the parties can reach a “win win” settlement that is not imposed on them by a Judge but rather agreed between themselves with the assistance of the mediator.

The costs of a mediation will depend upon the type of dispute, but typically both sides pay an equal share of the mediator’s fees and any travel or venue costs and they will each bear their own solicitors’ costs of preparation for and attendance at the mediation. The costs are always going to be cheaper than proceeding to a trial.

Mediation is only likely to be successful if both parties have a genuine intention to settle the dispute It is therefore important to bear in mind that you need to be prepared to walk away with a compromise and that the aim is to achieve a “win/win“ outcome not a “win/lose” outcome.

Here are our Top Ten Tips on formal mediation:

1. When to mediate: Mediation can take place at any time including prior to the issue of proceedings. 

2. Define Your Goals: Clearly outline your objectives for the mediation to your solicitor. This will allow them to understand what you hope to achieve at mediation.

3. Choice of Mediator: the majority of mediators are solicitors or barristers but there are some mediators who are experts in other fields such as accountancy or construction. Your solicitor will recommend a suitable mediator for your dispute based on the subject matter of the dispute.  

4. Prepare Thoroughly: Mediation is not a trial on the evidence but it is important to be prepared. Gather all relevant documents and information as this will assist you with presenting your case comprehensively to the mediator.

5. Clear Communication: Open communication with your solicitor and the mediator is essential to help them understand your perspective and guide the settlement discussions effectively. Anything you say to the mediator will be confidential unless you authorise them to relay it to the other party.

6. Listen Actively: Effective communication is a two-way street. Listen carefully to the other party’s viewpoint and concerns. This demonstrates your willingness to find a mutually acceptable solution. It is important not to be entrenched in your own views on your case if you are to have any chance of achieving a settlement.

7. Manage Emotions: Emotions can run high during disputes, but staying composed and level-headed contributes to productive discussions. It is natural to feel under pressure.  A sensible approach is to take a break, go for a walk and process your emotions before making or accepting an offer of settlement.

8. Be Flexible: Solutions may be suggested at mediation that were not consider beforehand and which may not be available if the matter were to be determined at trial. Flexibility in your approach increases the likelihood of finding common ground and reaching an agreement.

9. Damage Limitation: Consider other consequences of your decisions. Whilst it is important to address immediate concerns and to consider the impact of your choices on relationships, reputation and future interactions, it is also worth considering that trials are often open to the public. The losing party could therefore suffer reputational damage. A settlement at mediation has the advantage of being confidential.

10. Set Aside Time: It is usually the case that a full day will be set aside for a mediation . Be patient and take the time you need to carefully consider proposals and options.  

We offer comprehensive dispute management services, including mediation, to guide you through the resolution process. Click here to learn more about how we can assist you in navigating disputes effectively.