Mediation is a voluntary form of Alternative Dispute Resolution (“ADR”). It involves the parties to a dispute engaging the services of a mediator in an attempt to facilitate a resolution. It can take place before or during formal litigation. Any settlement reached between the parties is enforceable provided the legal formalities for such an agreement have been met.
If a settlement cannot be reached, any matters which have been discussed between the parties during mediation are privileged: meaning they cannot be used in evidence at court unless they later come to light or should have been previously disclosed.
The mediator is agreed by the parties to the dispute. Mediators are neutral third parties and cannot already be involved as experts in the case or be involved in the future. Their role is to encourage the parties to settle by inviting them to compromise where possible.
There are a number of advantages in using mediation, which include:
By engaging in mediation, parties to a dispute can demonstrate that they have assisted the court in furthering the Overriding Objective which, in civil proceedings, aims to deal with cases justly and at an appropriate cost.
Mediation is informal. It typically starts with a preliminary session whereby the parties set out their positions and what they hope to achieve. This preliminary session takes place by agreement and is not a strict requirement of mediation. After this, the parties separate and the mediator acts as an intermediary, trying to identify and narrow the areas of dispute, until an agreement can be reached or, if not, the parties walk away.
A trainee can expect to assist with mediation in a number of ways, for example:
These tasks underpin mediation. The Mediation Bundle ensures that the mediator is informed of the issues in dispute. The position statement is an opportunity to set out what your client seeks to achieve. Both tasks help to develop drafting skills as well the ability to decide what documents are relevant in relation to issues such as causation, liability, and quantum.
Where there is an opportunity to attend Mediations to assist and take a note, this a very valuable opportunity as you are able to observe the issues in dispute “play out” as the day progresses and observe negotiations taking place. Equally the job of note-taking should not be underestimated. Often the progression of each party’s position and the offers made are crucial to settlement decision making.
Ultimately mediation encourages parties to reach a settlement recognising that the ongoing costs of litigation are not in their mutual interests. The parties must bear in mind that there is no single pre-existing figure that can determine the value of a dispute. Mediation seeks to establish a settlement that falls within a ‘zone of reasonableness’: a range that reflects the compromise and ground ceded by both parties.
For trainees, mediation offers an opportunity to develop drafting and analytical skills and provides valuable exposure to an important (albeit voluntary) stage in the dispute resolution process. Mediation also carries the prospect of seeing complex claims (both factually and legally) resolved in a short space of time, which a 6 month seat does not often allow.
Mediation is a process that trainees are likely to experience when undertaking contentious seats – such as Commercial Litigation, Construction & Engineering, Contentious Probate and Agricultural Property Litigation. One of the benefits of a Michelmores training contract is that it offers trainees opportunities to experience a range of different practice areas – both contentious and non-contentious – and trainees can expect to assume responsibility from the outset. This gives trainees the opportunity to make valuable contributions to processes such as mediation.