Frequently asked questions
Unlike in court you can agree to resolve your agreement any way you want. The variety of solutions is as wide as you can imagine. From an apology through agreeing to fix a squeaky step to a cash payment and an agreement to use a company for more business through to a straight cash deal. Other resolutions have been agreeing not to go to court and splitting the profit on the whole deal.
So many options. A judge in court can only find for one party - one winner takes the money and - one loser the person who pays the money and the costs.
Open meetings between the parties facilitated by the mediators are encouraged but it is not absolutely necessary for parties to meet. In fact for small disputes telephone mediations are normal.
In private meetings with the individual parties, the mediator can act as a confidant, sounding board and go-between. The advantage of meeting privately is that issues can be discussed that you might not want to share with the other party. Discussions are held in the strictest confidence, and yet information can be shared through the mediator on a without prejudice basis.
Levelling the playing-field
Our mediators are trained to make the process fair. Because they are independent of the parties and they act as a go between they ensure neither party can cajole, bully or force a compromise. They take the heat and emotion out of the dispute to allow the parties to make a business deal that works for them both.
There is no small print!
There are only two legal documents The Agreement to Mediate and The Settlement Agreement. The latter may be attached to a Tomlin Order if proceedings have been issued.
Contrast this with the forms etc. in the court case.
Before the mediation meeting, the parties must accept that any discussion is without prejudice and is in strictest confidence. Issues discussed cannot be repeated as evidence in court. This encourages parties to reach a settlement, but at the same time, protects the individual party’s position should the mediation not be effective.
If the parties agree an acceptable outcome, they sign a binding document.
If a mediation doesn’t work, the court or tribunal is still available to the parties.
That’s up to you?
Mediation does not need lawyers it is the resolution of a dispute between two parties. Parties will often engage a solicitor and also a barrister to help them present their case for court. This has to be paid for. The Courts insist that an alternative dispute resolution is considered in the Civil Procedure Rules (CPR).
The mediators at Mediated Dispute Solutions can be engaged to mediate with or without assistance.
On occasion it can be helpful to have advice from a lawyer about your rights, opportunities and obligations. Mediators are independent of both parties and are not able to discuss your legal position or that of the other side. They have to remain independent. If an agreement is made and a party has not consulted a lawyer the mediators will check if you want to get legal consultation before you sign.
It is not necessary to have a lawyer, solicitor or barrister present at the mediation as the agreement is between the two parties. If parties wish to have their solicitor or barrister present they are usually responsible for those costs incurred.
Sometimes one party wants to try mediation and the other party either doesn’t or hasn’t been asked. It is a good idea to write to the other party inviting them to mediation especially if court proceedings are contemplated.
The Citizens Advice website provides advice and specimen letters to help.
Often parties choose to mediate if a neutral or impartial mediator contacts both parties. It is an opportunity to enquire if they want to mediate, to explain the advantages of mediation, and to provide an outline of the alternatives.
In cases with a value under £15,000, and where legal advisers are not involved, Mediated Dispute Solutions is prepared to contact the parties directly to seek their consent to mediation.
The cost of making contact is £30 (inclusive of VAT) and is payable by the initial enquiring party. It is non-refundable, but can be offset against the cost of the mediation if both parties agree to mediate. When providing this service Mediated Dispute Solutions cannot provide any legal advice to either party other than recommend each party considers its position and decides whether it wishes to seek advice from a legal adviser.
For further details please contact Mediated Dispute Solutions.
What does it all mean? Our guide to some of the jargon
Like everything there is jargon. Here are some explanations that might be helpful.
ADR - Alternative Dispute Resolution
Agreement to Mediate - The document setting out the terms of mediaiton including confidentiality and without predudice as they relate to mediation. Signed by all taking part.
Aggregate Value - The sum of the claim and any counter-claim
Arbitration Parties - agree to submit their dispute to an impartial tribunal
Claimant - The person bringing the claim
Complainant - Person making a complaint
Confidentiality - A duty not to disclose information or documents to those outside the dispute
Consent Order - A record of a contractual agreement between the parties that has the force of a contract
Conciliative Mediation - A process to improve the communication between the parties by using the mediation format but parties rarely meet together
CPR - Civil Procedure Rules that govern the procedure in County and High Courts
Defendant - The party responding to a claim, can also be called the respondent
Family Mediation Parties - who have had a personal relationship benefit from meeting on several occasions with a mediator to engage in direct communication with the other party to make family arrangements and dissolve partnerships. Suitable for splitting cohabitees, inter-generational disputes or divorcing couples
MIAM - Mediation Information and Assessment Meeting
Parties - Those involved in the dispute who have a say in how it will be resolved
Privileged information - Confidential communications between a lawyer and client in giving or receiving advice or information - allows clients to get legal advice in complete confidence without the other party knowing
Settlement Agreement - Mediation is fianalised by a signed written agreement or schedule ending the dispute
Tomlin Order - A consent order that stays court proceedings on the terms set out in a confidential schedule contained behind the order
Without prejudice - Communication made in a genuine attempt to settle (the mediation) the dispute is protected from disclosure to the court at trial. This removes the fear that any concessions or admissions used to attempt to settle will be used at trial