The civil mediation process is one in which two or more people involved in a dispute meet and with the help of a mutual third person (the mediator), work out a solution to their problem. Each participant describes the dispute from their point of view and in their own terms as well as how they think the matter can be resolved. It is the job of the mediator to help focus attention on the relevant issues and help the participants identify a workable solution.
Why Use Mediation?
The power remains with the participants with the aim of mediation to come to a private, cost effective arrangement without prejudice, whereby the parties avoid a deterioration in the relationship. Lawyers may remain involved and work creatively with their clients/participants, but not destructively.
Some common misconceptions about mediation
- The mediator is an arbitrator or a judge.
- The mediator persuades the participants.
- The mediator imposes a settlement.
- Only lawyers can be mediators.
- It’s like expert determination isn’t it?
- The mediator tells participants what the judge will do.
- Joint settlement meetings are more effective.
- Telephone negotiation is cheaper.
- It is a waste of time – nothing settles.
All of these misconceptions are wrong.
- The mediator is impartial, independent and neutral. They help motivate and facilitate discussions to assist the parties in promoting a settlement.
- Anyone can train to be a mediator.
- Most mediations are successful. If the parties really want to settle – they will.
- Mediation, with the aid of a mediator cannot be equalled by joint settlement meetings, telephone negotiation or the like.
- Mediation provides principled negotiation.
- Does not depend on the skill or power of the participants.
- Provides a fair and balanced atmosphere.
- Creates a basis for mutual trust to be restored.
- Provides a neutral third participant.
- Allows participants to proceed at a pace with which they are both comfortable.
- Is structured yet flexible.
- Allows the skills of the mediator to explore a range of solutions and allows participants to think outside the box.
- Allows movement from issues to interests and wants.
- Puts the participants in control.
What does it cost?
This is where mediation completely wins “hands down” over litigation.
It has often been said that the twin scourges of justice are delay and expense. That is as true today as it was 20 years ago.
There are large sections of the community who simply cannot afford litigation and even in a modest dispute before the court, legal expenses of each party may run up to £5,000 – £10,000 and in any substantial case may range from £20,000 – £70,000.
Yet, the courts only try (that is to say a judge hears and determines) a very small percentage of cases through the courts, less than 10%. It follows from this that 90+% are settling before trial. Settlements are often late, sometimes on the steps of the court, and yet have to take into account huge legal expenses of both parties at that time.
Mediation can happen at any time, but the earlier the better. Participants may or may not be legally represented at mediation.
A one day mediation may involve the costs of a mediator which, depending on the weight and complexity of the matter, may charge between £2,500 and £4,000 exc. VAT for a mediation. Commonly, the charge is £3,000 plus VAT, which cost is divided between the two participants.
Thus, it is quite possible for a dispute to be settled at a mediation costing the party £1,500 plus VAT (plus his own lawyer’s expenses if the participant brings his lawyer to the mediation). This is extremely modest compared to the way in which litigation costs may soon be run up. A good litigator is charging £200 per hour and so it follows if he only has to do 7 or 8 hours work to charge the same as a participants’ costs in a mediation.