You may have heard the term “mediation” banded around if you or someone you know are involved in a dispute. This article is designed to explain what mediation is, the role it plays in the Court process, and its advantages and disadvantages. It’s important that you are equipped with the right knowledge during difficult times, when emotions can run high, as ultimately the approach you choose to resolve a dispute may well make a difference to its outcome and the level of satisfaction you have upon its resolution.
What is mediation?
Mediation a type of Dispute Resolution (DR) designed to settle issues amicably without the need to attend court. This is intended to save all parties time, energy and money. Mediation is not a counselling service; it operates on the basis that the relationship between the parties has already broken down.
There are many situations where agreement seems impossible because the parties can no longer communicate with each other properly. Mediation can help to rebuild communication because it gathers everyone on ‘neutral ground.’ Mediation can cover a whole range of issues and can to a large extent accommodate the needs of individual situations.
The mediator is a trained, impartial third party whose job it is to facilitate communication, work out the issues to be resolved, explore solutions and guide the parties forward in reaching an agreement.
It is worth noting that it is not the mediator’s role to give legal advice or to say whether a proposal is fair or what a court would order. You may therefore prefer to still have the support of a lawyer throughout the mediation process who can advise about any relevant questions that need asking, implications of different scenarios and proposals, and whether a court would be likely to order something similar to what is being discussed.
What role does mediation have in the court process?
In many cases (save for a few exceptions mainly where domestic abuse is involved) a Judge at court will expect you to have at least considered mediation before you make a court application and if this is not apparent, can refer the parties to mediation and not deal with the case until this step has been completed.
Mediation is a voluntary process. If you or your lawyer makes a referral to mediation, there is no obligation on the other party to engage with that process. If the other party refuses to attend mediation for any reason, you will be given the relevant form by the mediator to attach to your Court application. You will also be given the relevant form (called the FM1) if mediation has been attempted but has been unsuccessful.
If you go to a lawyer for advice, they will probably suggest a referral to mediation whether or not you think you will need to go to court, simply because of the legal requirement to have considered it.
How does mediation start?
Mediation starts with a referral, either by you or by your lawyer. There are different mediation services available and you should choose one who can facilitate meetings in your local area, or at an equal distance if you and the other party live further apart.
The first meeting is often called a MIAM (Mediation Information and Assessment Meeting). This comes at a fee of usually around £80-£100. At that meeting you can find out more about how mediation will work, the mediator can assess whether mediation is right for the situation and can give an estimate on the number of sessions needed and how much they will cost. If after the MIAM it appears that mediation could be a way forward, the other party will be invited to a joint session. Separate sessions can also be arranged if appropriate.
If you are the other party being invited, it is for you to decide whether or not you wish to engage. Either way, it still helps to know about the potential advantages and disadvantages of the mediation process.
What are the advantages of mediation?
The costs of mediation are substantially lower than paying a lawyer to represent you at court. At mediation either party can bear the cost, or spread this equally. Some mediators may operate on an hourly rate (which is generally lower than a lawyer’s hourly rate although this depends on experience) and some may operate on a meeting-by-meeting basis. If all parties are on the same page and are able to reach a smooth and swift resolution, mediation can save hundreds if not thousands of pounds.
Provided all parties are co-operative then a resolution can usually be reached through mediation within 3-4 months. Sessions can be arranged around your own timetable and commitments.
Court proceedings are subject to the court timetable and depending on the court’s workload may take more like 6-12 months to conclude, or sometimes longer depending on the complexity of the case.
Everything said in a mediation session is strictly between the mediator and the parties. This means if mediation does not work and court proceedings become necessary, any negotiations are not exposed to the court (they are “Without Prejudice”) and parties can start afresh with their cases.
You can attend mediation with the safety of knowing that if the dialogue breaks down there will be nothing tying you to what you may have previously been prepared to compromise for the sake of reaching a quick settlement.
4. More relaxed evidence rules
Although mediation may start off guided by court rules for evidence, it is not as rigorous or stringent. This can be helpful if you foresee any difficulties in being able to produce thorough evidence supporting your case at court. You may also be able to put evidence forward that a court wouldn’t normally consider but you feel is relevant and ‘should be’ taken into account.
5. Acceptance of agreement
Because mediation involves a level of trust, if agreement is reached then there is a general acceptable from all parties that settlement is concluded and that the outcome is something all parties can live with.
This tends to preserve relations between parties which is healthy particularly where there is an inevitable continued involvement in each other’s lives (e.g. where the parties have children together.)
Any control over an outcome in court proceedings, if they remain disputed, will ultimately be taken out of your hands and fall to a Judge.
What are the disadvantages of mediation?
1. No guarantees
There is always a possibility that discussions will come to a halt and negotiations could fall through. If this happens, you will have spent time, effort and money on a process that may ultimately render itself meaningless.
If one party remains adamant, does not listen to what the other party is saying, or does not take steps to reach agreement, the matter could end up going to court anyway. There is a word of caution therefore that if you are entering the mediation process, you should have a decent level of surety that it is what everyone wants and that everyone is reasonable enough to not go in simply expecting things to be done on their own terms.
2. Not legally binding
Any final agreement reached at mediation will be drawn up by the mediator into a document (sometimes called the Memorandum of Understanding.) This document, although setting out the terms of agreement and sometimes in great detail, is not legally binding or enforceable. This is a common misunderstanding that often surprises those who have not been equipped with the proper information. This is of course contrary to court proceedings where any court order made by agreement or otherwise becomes effective immediately and can be enforced.
If possible, the mediator should direct parties to lawyers who can give them independent legal advice, draft the relevant documentation to file at court and, subject to court approval, make a legally binding agreement.
3. Lack of certainty and structure
Because mediation is not a legally binding process, it is possible for a party to change their mind about arrangements immediately after reaching a so-thought resolution. If the other party then needed to apply to court, an entirely new referral would likely have to be made in order to retrieve the form required to show that mediation has been considered. This is particularly important to note if you are dealing with someone who may be using delaying tactics, wishes to avoid court proceedings or simply wants to make things difficult.
There are some situations where it makes sense in the circumstances to discount mediation as a means of resolving your dispute and head straight for the certainty and structure of court proceedings. Just as flexibility can be an advantage, depending on the circumstances it can also be a disadvantage.
4. Mutual cooperation is a must
Success of mediation relies on both sides coming to the table and working towards resolution. If one side refuses to take this approach, which inevitably involves some level of compromise, mediation will not work however much you may want it to.
You must consider the personality traits of the other party before making a decision about mediation; sometimes the world is not as ideal as one would hope!
5. Lack of protection
During the course of discussions emotions can run high, tempers can flair and there is no guarantee that communications will stay civil. There are some factors the mediator cannot control, like how someone will react to anything that might be said, although they will try to manage this as far as possible.
Opening yourself up to dialogue with the other party also leaves it open for things to be said outside of meetings. Attempting cooperation with this person may just not be suitable or advisable, depending on either the circumstances or the relational history between the parties.
If you are prone to feeling intimidated or manipulated by the other party, it is likely that you will not be satisfied with the outcome of any agreement that may be reached as the same dynamic of relationship will transfer through to mediation sessions. For this reason, some people prefer the distance court proceedings can establish, as there is no requirement or expectation for the parties to speak directly to each other.