Q: What is med-arb?
A: Med-arb is a hybrid process involving a mediation, but if a settlement is not achieved the Mediator ‘swaps hats’ and becomes an arbitrator. This is not a commonly used process but is a good illustration of the flexibility of mediation and how it can be combined with other forms of Alternative Dispute Resolution (ADR).
Q: Is there a good time to mediate?
A: Mediating as soon as possible after a dispute has arisen will inevitably save some costs. A mediation may also be required under the terms of a contract where provisions state that a mediation take place when a dispute has arisen and prior to a claim being issued. However, an early mediation may mean that the issues in dispute haven’t yet crystallised which in turn can impact on the effectiveness of a mediation. Generally though, a mediation should take place as soon as reasonably practicable to give the parties the best chance of mitigating the impact of costs and management time where there is a dispute.
Q: How long does mediation take?
A: A mediation can take place over a short period of time, particularly if a case has a limited number of issues or some issues have been resolved already. Time-limited mediations, for example four hours, which are effective and save costs, may suit the parties and their dispute. Generally though the parties will allocate a day or more to the mediation with some preparation beforehand.
Q: What can be discussed at a mediation? Can we talk about other issues which are of concern?
A: You can discuss what you want at a mediation, as long as the other party is prepared to do so. You would not need any permission from the Mediator who would generally be happy to facilitate discussions which might lead to the settlement of a dispute or disputes and perhaps maintain an on-going relationship between the parties.
Q: Do I have to attend a mediation with a lawyer?
A: No, not necessarily although it might be sensible to do so, particularly if a lawyer is instructed generally. A Mediator isn’t required to provide legal assistance where a party is not represented.
Q: Should the Mediator also be a lawyer?
A: The Mediator does not have to be a lawyer, although many Mediators have a legal background. That may assist where there are complex legal issues to be discussed, difficult procedural points or technical questions arounds costs.
Q: If the Mediator is independent and legally trained can he/she give an opinion on a case to help with settlement?
A: Mediators often put great emphasis on the fact that they are independent and are there to facilitate a settlement which means helping the parties to reach an agreement without giving an opinion on the merits of a case. If the Mediator started to favour a party’s argument in the negotiations then that could destroy the other party’s confidence in the independence of the Mediator.
However, there is no reason why the parties together should not ask a Mediator to provide an opinion on some or all of the issues in a dispute. This is where the Mediator’s role turns to an evaluative one. This is moving away from the traditional model of mediation but if it is requested by the parties and it helps a deal to be achieved (which everyone wants) then there is no reason why the Mediator should not express a view. A view if requested would be given to the parties’ representatives in private. Certain caveats would usually be attached, the opinion given confidentially, and the parties could not refer to it in any court proceedings going forward.
Q: What happens if we don’t reach agreement at the mediation?
A: If there is no deal at a mediation there is no reason why the Mediator cannot remain involved (with the permission of the parties) to continue discussions. The parties may also return to a formal mediation at some other point in the future.
Q: How quickly can we set up a mediation?
A: A mediation can be set up quickly. There is no requirement to get permission from the Court, although there may be some stipulations in a contract. Once a Mediator has been selected and arrangements made around timing and location, you are ready to go. The parties may produce position statements and a limited amount of documentation but this should not hold up arrangements in any way.
Q: How do we choose a mediator?
A: Some Mediators will tell you what their success rate is for settling mediations. This may not be a good guide to choosing your Mediator particularly if it is reflective of a Mediator’s desire to get a case or cases settled over and above the parties’ wish to achieve a deal!
As with all professions some mediators are better than others. Those who bring their well-honed techniques and strategies to the mediation tend to be the ones who are successful and establish a reputation. These are the mediators you should be looking to engage with. There are various providers and mediators also work individually through their own companies. If you might want a non-binding view on possible outcomes then you should ask a mediator if he/she is prepared to do this and in this case the mediator will need to have a legal background.
For more information about mediation, or how we can assist you with a dispute, please contact us today via email or telephone on 0113 227 9308.