Mediation – Its Many Advantages and How It Works in Practice - By Paul Sandford

In my last article I extolled the benefits of mediation. There is much more to mediation than just saving time and money.

Mediators will already be familiar with the contents of this article. It is aimed very much at the general public, not least those who may have a disagreement or dispute to address and who may be considering court proceedings. Mediation works. Not only is it cost and time effective but it brings about real, fair and just settlements.

In this article I am focusing on civil as opposed to family mediation although in many respects the principles and considerations that I set out below are similar. I am focusing on the UK, principally England and Wales but broadly speaking, the same principles apply in other jurisdictions. I must make it clear that in expressing my own opinions I am not seeking to give professional advice of any sort whatsoever. Those who are interested in looking further into mediation should contact a practicing mediator or mediation provider who for an initial enquiry will more than likely charge nothing. Equally, those who require some form of legal advice should contact a suitably qualified lawyer.

What is mediation? Essentially, mediation is a process where parties who have a disagreement or dispute meet with a mutually selected impartial and neutral person who assists them to consider differences and areas of disagreement in the hope that they may find a mutually acceptable resolution. Some mediations involve two, three or four parties but multi-party mediations are by no means uncommon.

I trust that what I set out below is helpful. However, if at this stage even if you are only vaguely interested or simply curious, all you have to do is contact a mediator or agency that offers mediation. Look no further than Google. Even if you are not currently involved in some sort of dispute or disagreement, learning about mediation now may be useful for the future.

1. A brief outline of the mediation process. In the UK, although not in other jurisdictions such as in Germany, the mediation process is a combination of individual sessions involving the mediator and individual parties usually with a joint session or sessions as well. Unlike court proceedings is no hard and fast, rigid format and much will depend on the views and wishes of the parties. The mediator oversees the process and these discussions, partly encouraging participants to express themselves partly by asking open, nonconfrontational questions.

If the parties reach some measure of agreement, this can if they wish be recorded in a written document, drawn up by the mediator. However, the mediator will not dictate the terms of any agreement. The parties decide on the wording and mediator records their views and wishes.

Experience shows that where parties have generally agreed to the settlement they are more likely to adhere to its terms than if it has since been forced on them by “a higher authority” such as a lawyer, judge or person in authority.

2.Should disputing parties mediate in each and every case? No, of course not. Mediation should not always be “ first resort” any more than it should be regarded as a “last resort”. Not every single dispute, disagreement or court case needs or requires mediation. Equally, the parties to a particular dispute and/or their lawyers or advisers may be able to effect a just and fair “common sense” settlement or resolution. Indeed, if they can, that is all to the good.

In some instances, some legal advice or input from, for instance, a family member will confirm that a particular person has no case in which event, no mediation. Lawyers do not have a monopoly on giving advice. Guidance from an impartial source e.g. an advice centre, a disinterested family member or friend or an empathetic member of HR staff may do the job just as well. Equally, those involved in a particular dispute who are prepared to look at things with an open mind may not need any outside help at all.

Beware of settlements, possibly legal settlements, where in reality people are pressured or feel pressured into agreeing to a particular outcome.

3. Is mediation compulsory? Mediation is not compulsory. Although mediation may be strongly recommended e.g. by lawyers or by a court official such as a judge, mediation is not a compulsory process. (However, see paragraph 21 below)

4.The neutral status of the mediator. Mediators are always completely neutral and do not give advice, pass opinion, make value judgements or make legal determinations. They listen to what the parties have to say and explore the issues with them. It is for the parties to make their own minds up about things.

5.In mediation are people “compelled” to agreement or compromise? No. Mediation does not mean that the people involved “have” to reach an agreement, compromise, meet “meet halfway”, “split the difference” or anything like that. Equally, it is quite acceptable for parties to agree to disagree or agree partially.

6. Is mediation a private process? Yes. Mediation is a private process. What is said in a mediation stays in the mediation. So for instance if party A makes an offer of settlement to party B during mediation and this is rejected, party B cannot refer to that in any future court proceedings. This means that parties can be candid and provided they are not abusive and do not use inappropriate language, they can say what they like whereas for instance in legal correspondence or in court they may be constrained from doing so.

7.Are there lots of complicated rules? No! Mediation is a flexible process and there are very few rules as such. As is explained above the process itself is simple. Broadly speaking the bare outline set out in paragraph 1 is used but in individual mediations, the format adopted will depend very much on the parties. Some may wish to engage face-to-face, others may not. There is no compulsion for the parties to meet face-to-face if they do not want to although in some cases this can be helpful.

8.How do the timescales in mediation compare with those in court cases? From start to finish, in the English courts, a court dispute, even a very low value one can easily take two years before it reaches a full trial. True, that many cases do not go this far because they settle but even so, the delays are considerable. Even making a simple application to the court in respect of a procedural issue can result in waiting time of weeks, even months. By contrast, mediation can be arranged very promptly, sometimes at a week’s notice. Even in complex cases, mediations can last as little as a day or two. Court trials (when one finally reaches that point) can easily take considerably more.

9. How do the costs of mediation compare with the costs involved in taking a case to court? It would be wrong to say that mediation is a “cheap” process but it is considerably less expensive than litigation. Certainly, one is not expected to choose between mediation and litigation as in many instances mediations take place after court cases have started. However, in most instances this does not diminish the fact that mediation gives excellent value for money. My own personal rule of thumb is that litigation is probably 80% more costly than mediation.

10. Do mediators give legal advice? No! Mediators are not lawyers. Before mediations begin, mediators advise parties that they should take legal advice and they may need to do so again during the mediation e.g. in the case where compensation is sought, legal guidance may be needed as to the appropriate level thereof. There may be a point of law or an issue as to liability on which legal clarification should be sought. Mediation is not some sort of “lawyer exclusion zone”.

11. Can lawyers attend mediations? In some instances it will be appropriate for lawyers to attend their client’s mediations and even though the costs will increase accordingly, parties will in all probability agree that ultimately they still get excellent value for money.

12. Will I be able to have my say during mediation? Yes, most certainly. Because mediation is a fairly informal process it is very much a listening rather than points scoring process. In most instances it brings out the best in people whereas often, court proceedings bring out the worst. I can think of one particular dispute that I mediated involving two co-workers. At the start of the mediation at 10 AM they were literally daggers drawn. By 3 PM they were reconciled and if not exactly “kissing and making up” were smiling and cordial with one another. What brought about the transformation was the realisation that each of them had valid points to make and they had more in common than they realised. They began to understand one another’s points of view and with my encouragement, instead of shouting, started to listen. Each of these parties was able to explain the nuances of their respective points of view in detail, something that the court process does not always facilitate. Because the mediator is impartial, he/she will always ensure that the parties have every opportunity to be heard and to be listened to.

13. How much does mediation cost and how much does litigation cost? What are the hidden costs? This is very much a matter for the parties to individual cases to discuss with their chosen mediator. However, as indicated above, mediation is considerably less expensive than litigation. At the time that I ceased practising in the spring of 23, the starting point for my charges was ￡1000 per day or part thereof plus VAT. Assuming two parties, that would be ￡1000 per day i.e. ￡500 each plus VAT. This is not a hard and fast rule and charges may vary depending on the experience of the mediator and other factors such as the complexity of an individual case and the levels of detail and the amounts of documentation that have to be addressed.

Currently in England, the most junior lawyer working on a private basis will probably charge a minimum of ￡250 per hour plus VAT, even in low value cases. This means that every single brief conversation, telephone call et cetera is charged and the bill mounts. In mediations, the initial preparatory work is undertaken without additional charge.

Bear in mind also that if you “win your court case” you will not necessarily recover all of your costs, perhaps only something between half and three quarters. This means that in instance relatively low value cases, although you may “win”, in time and economic terms you may have a hollow victory.

14. When should I mediate? Accepted wisdom suggests that mediation to take place at an early stage of a dispute are more likely to succeed. However, this is not necessarily the case. It is never too late to mediate!

15. Hidden costs in litigation - You should also bear in mind that even with the very best most efficient well-resourced lawyers around, if you have a court case pending you will still have to spend hours of your own time liaising with those lawyers, addressing the issues, reading documents et cetera. This means that you may, have to take valuable time off work or if you have a business, you may not be able to devote all the time to it that you should. Your personal life may suffer. Because mediations are convened promptly and do not take inordinate amounts of time, pressures such as these will be kept to a minimum. Some mediators often work at weekends and after 6 PM at night.

16. Is mediation ever free? Yes. In some areas, there are voluntary organisations who will provide mediation without charge. This is particularly true of neighbour disputes. If you check on Google you may find that there is a local without charge mediation provider available in your area. Having volunteered with two of these providers and having dealt with a number of others I can categorically confirm that in the main very offer a very high standard of professional service.

17. What proportion of mediations are successful? Mediation has a high success rate. Overall, in the years that I practiced I had a success rate of between 80 and 90%. Some suggest the average success rate is 90%, others 70% but even accepting this lower figure, that is still very good. Court cases carry with them very significant levels of uncertainty. There is certainly no such thing as guaranteed court case success. There are any number of variable factors which mean that when advising as to the prospects of success and in respect of matters such as those of compensation, even in an ostensibly strong case, a sensible professional lawyer will be reticent to give very much away.

18. What happens if my mediation does not succeed? Subject to taking legal advice you may still be able to go to court if you wish. Equally, you have the option of an informal settlement. In my experience, even when mediations ostensibly fail, the parties gain valuable insights into the dispute resolution process and very often this gives them the wherewithal to reach a just and fair informal settlement.

19. What types of civil case are best suited to mediation? The simple answer is most. These include but are not limited to the following: – commercial and consumer disputes whatever the value; negligence claims; neighbour disputes and land disputes; family disputes e.g. where there is a disputed inheritance; landlord and tenant disagreements; internal workplace disputes and dismissal and redundancy cases.

20. When should I mediate? The short answer is that “it is never too late to mediate.” In practice, the best time to mediate is early on in a dispute before the parties’ respective positions become too entrenched. However, I have seen cases where mediations have been successful very late in the day, even where proceedings are very far advanced.

21. Can I mediate from home? Prior to Covid it was normal practice for mediations to take place at a neutral physical venue. Nowadays, it is much more usual for mediations take place online using Zoom or something similar. My experience was that this is a very effective medium. It gives even more flexibility and for instance means that better accounts can be taken of people’s work and domestic agendas.

22. The future. The day will probably come when the courts adopt the view that mediation should be used first and those who “unreasonably” decline to do so or abuse the process will be made the subject of heavy costs penalties. Equally, it is conceivable that in the future, lawyers who fail to give their clients proper advice about mediation and its benefits may be strongly criticised and held liable in costs, if not reported to their professional bodies.

23. Conclusion. I suspect that at some point, possibly in the next 5-10 years, mediation will become part of the legal furniture. However, irrespective of any such considerations, I have demonstrated above that there are far better reasons for mediating than simply going to court. The benefits of mediation are quite apparent and are for all to see.