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A Quick Guide to Mediation

There are various forms of Alternative Dispute Resolution (ADR) such as mediation, med-arb, early neutral evaluation, expert determination, and structured negotiation.

Mediation is a common and well-recognised form of ADR offering an enhanced form of negotiation which takes discussions out of an adversarial environment where sticking to positions might have been the strategy. Mediation helps the parties to move from their positions and to negotiate a settlement with the assistance of a third party neutral facilitator (the Mediator).

The Mediator is trained and will use their knowledge and skills to facilitate negotiations where there might previously have been a stalemate. The Mediator is not there in a judicial role and will not make findings as to who might be right or wrong, unless asked to do so. The process is confidential and the parties always retain control over whether or not they wish to settle and on what terms.

The advantages of meditation:

  • Mediation is confidential so whatever the parties say cannot be referred to in any court proceedings. An Agreement can be made on a confidential basis so will not find its way into the public domain, including the press
  • There is no compulsion to reach an Agreement, although clearly the best outcome is that a deal is done
  • An Agreement reached can encompass settlement terms which a Court is unable to order
  • Mediation can take place using any modern form of communication but traditionally they are face to face at a neutral venue
  • A structured mediation helps concentrate minds towards settlement and statistically they are successful
  • The process is flexible and a Mediator can use various steps and processes to help the parties reach a deal
  • It could be particularly useful in a restrictive covenant case, for example, where customers/clients are caught in the middle of a dispute between an employer and an employee

Where meditation may not work:

  • A party to a dispute might be looking for an interim remedy such as an Injunction. Having said that mediation might deal with the underlying issues of the dispute
  • Occasionally a case will need to be litigated where a legal or a commercial precedent needs to be set
  • Mediation is private and confidential which will not suit a party who wants to have a case heard in public
  • Mediation may be used for other motives, such as to delay the progression of a case or indeed for one party to find out more about another party’s case away from the formal litigation process

Parties present at a mediation must have the authority to negotiate and then to complete an Agreement if the Mediation is successful. If no deal is reached then there is a possibility to come back at a later stage and the Mediator can stay involved.

 

For more information about the mediation process or other forms of ADR why not visit our FAQs section, or for a no obligation discussion please email or call Iain Jenkins at Blacks Solicitors today on 0113 227 9308.

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