A mediation is a process in which the parties instruct an independent third party to act as go-between for the parties. This is usually a barrister who specializes in mediating in a particular area. If your client is interested in mediation, then you should write to the other party to express your client’s willingness to mediate. There will be some practical questions to consider, such as
- the timing of the mediation. This could be effected by the progress of any proceedings to date. For example, your party may have a looming deadline to meet. Inviting your opposition to engage in mediation immediately prior to, say, the exchange of witness statements, could signal to them that you are struggling to meet the deadline. It may be practically ineffective to enter into mediation immediately prior to a significant deadline as the parties are likely to want to see any material arising out of that deadline. So consider when and how the mediation should take place. If appropriate, you can explain the reasoning as to timing in your correspondence to your opponent.
- The location of the mediation. This could be a neutral rented office. You will need to consider that, ordinarily, three rooms will need to be available. Two of the rooms will need to reserved for the parties to receive advice from their lawyers. The third room could be needed if the parties need to come together at any point in the mediation. It may be appropriate to agree to using one of the parties’ offices for the mediation. From a client care perspective, you could consider explaining to your client that using an opponent’s offices for the purpose of mediation is often just convenient and does not reflect any ‘concession’ on your part.
- Who should conduct the mediation. Normally you would agree a mediator with the other side in advance. You will then need to approach the mediator and instruct him. Both sides will normally serve the mediator with documents which sets out their position on the mediation. The mediator will usually set informal ‘directions’ for him or her to be provided with the necessary material in order to make the mediation run smoothly.
Assuming the other side agrees to engage then the process of arranging the mediation will begin.
The obvious advantage to mediation is that it is cheaper and far more efficient than litigation. Parties may be able to leave the mediation with a resolution that suits both sides and having saved potentially significant sums in costs.
There are downsides to the mediation process. There are no formal rules of disclosure, meaning that parties may resolve a dispute without full knowledge about the materials in their opponent’s possession. There is also no immediate way to enforce the result of a mediation as there is with a Court Judgment. However, the results of a mediation are considered to be a binding contract, which can become the subject of further litigation as necessary. In other words, you can sue in order to enforce the terms of a mediation.
A useful, client centred guide to the process of mediation can be found here.