The key people involved with Mediation are the parties who are involved in the conflict or dispute. You may have a representative such as a lawyer or Mediation Advocate, or a friend. The person representing each party must be equipped with the authority to make decisions which may become binding on them. This is something you will be required to confirm in the Mediation Agreement.

Your mediator is likely to have been instructed by one of the parties or a professional advisor such as a lawyer. Third parties (people not involved with the mediation) are not permitted to know the details of any conversations you hold with your mediator or other party. Your mediator will not disclose anything without the prior written permission of all parties. This provides you with a substantive opportunity to explore thoughts, feelings, concerns, and frustrations in an open forum with each other without any other people knowing.  

Confidentiality and privacy are key to mediation. The Mediation Agreement, signed before the mediation meeting will require (amongst other matters) absolute confidentiality to the extent nothing learned during the process may be disclosed in any subsequent proceedings. It is a safe environment in which to laterally explore solutions and exit strategies.

Mediation is a process which starts by understanding and exploring the issues and following through to reaching an agreement. You may need only a day or a few sessions over a month depending on the nature and complexity of the issues and availability to hold meetings. 

Your mediator will start by speaking to each person involved and explore what the issues are. They will hold confidential conversations, usually remotely by telephone or by Zoom, and this is your first opportunity to tell them what has been happening. Your mediator will not disclose anything you say to anyone else unless you ask them to. 

Once your mediator has had the initial calls with each party, they will help you get ready for the session. This will include anything to prepare ahead of the day, where everything will take place, and who will be attending. Let your mediator know if you need support leading up to or during the session. 

There may be a need for some Conflict Coaching to help each party better understand how to communicate and add the most value to the mediation session. You mediator will discuss this with you. These sessions will take place before your mediation session and will be held on a one-to-one and confidential basis. 

Once a date has been set, your mediator will meet you at the venue, if this is in person. Ideally, there will be three rooms. Once for each party and a central meeting space (which your mediator will use too). This will provide you with a confidential space to think and reflect on your position and how you want to move forward, and a shared space for you to have conversations with the other party.  

The aim of the mediation session is to help each party move forward. This may take a couple of hours or a whole day. The time needed depends on the willingness of those involved to make compromises and to agree outcomes. 

A typical mediation will be divided into private sessions and joint sessions. Your mediator may use a mixture of these depending on what is appropriate in the circumstances. They will invite you to agree who will proceed with talking first and involve you in how you want the mediation session to take place. If you have any particular requirements or support needs, please let your mediator know as soon as possible so that they can accommodate these. 

Once the mediation has concluded, your mediator will explain the next steps. At the end of the mediation session, you may have agreed your way forward. This may include elements such as how and when you communicate with each other; agreed apologies or expressions of regret; and whether any other formal processes are to be engaged with or stopped. 

Your mediator will schedule a follow-up with you at an appropriate time. This will be to check on progress of any agreed terms, and whether an agreement has been reached after the mediation (this sometimes happens). In each respect, your mediator will ask if you need any further support such as Conflict Coaching, training, or a further mediation session. 

Your mediation agreement takes the form of some key actions with dates and explains who is responsible for each action. Except for confidentiality and payment of mediation fees, this is not a legally binding agreement. Enforcement of such agreements is not usually an issue. Parties tend to stick to the terms agreed because they have reached them of their own accord. 

The Settlement Agreement reached following a successful mediation is enforceable in accordance with its terms. You may be able to get a consent court order or arbitration award based on the Settlement Agreement.

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Most western mediation teaching concentrates on the facilitative form where a mediator facilitates and uncovers the parties’ real concerns in the endeavour to bridge the distance between the parties and their respective positions to the extent that a commercial settlement really makes sense as the least bad alternative to litigation.

Other forms of mediation are given names such as evaluative and transformative. Transformative mediation is about reducing power imbalances and has particular application in workplace disputes. Evaluative mediations require the mediator to give an indication of the strengths and weaknesses of the parties’ respective positions where both parties agree. In this sense an evaluative mediation can be more akin to an Expert Determination. 

Whilst I have done some workplace mediation at the higher echelons of international corporates it is not my preferred medium. On the other hand I have mediated disputes in cases where the parties did want an indication of their respective positions to provide a basis for direct negotiations in very successful ways. In a case where the leaders of the Contractor Consortium and the Employer were at school together in their childhood and did not want to face each other, even vicariously through expensive law firms, in a dispute in their hometown an evaluated mediation reduced the areas of difference between them and allowed a commercial settlement to ensue.

An evaluation of the merits of the parties’ respective cases can only be given where both parties agree to that approach. Such evaluation will necessarily be non-binding and advisory only. If a binding decision is required then the best approach is to seek such through formal arbitration.

The Pandemic has validated digital environments other than in person meetings. My experience is online mediation takes longer but is no less effective. 

Recently I mediated a shareholders’ dispute with parties in Australasia, North Asia and the Middle East. If we had sat down together in Singapore, then I estimated 3 days to resolve matters. The online mediation took 80 hours over 3 weeks but was nonetheless successful. No party incurred travel or hotel costs which more than offset the increase in fee costs. It did mean I became accustomed to night shift working! It is of course possible to design a procedure which both parties are happy with, be that in person, online or hybrid. 

My fees are £250 per party, per hour. This fee is paid by the parties in advance. The fee will include the session, and estimated preparation time. If more time is needed your mediator will discuss this with you. 

It is not necessary for lawyers to be in attendance at mediation. However, if you wish for your lawyer to be present, they can advise and support you throughout. 

Mediation is more successful where the parties engage fully and without their legal advisors speaking on their behalf. Finding a good balance between legal support and party engagement is paramount to the success of lawyer-attended mediations. 

If the issues cannot be resolved in mediation, the issue may require intervention by a third party such as using Expert Determination, Adjudication, or traditional litigation. 

These other routes to resolve your issues are usually more expensive and time consuming and will likely result in a win-lose scenario for one or more parties. Mediation is the best way to agree mutual outcomes and achieve resolution. 

If you believe that your legal rights are affected by any of the issues you are facing, you should seek legal or professional advice about your situation. 

If you would like some assistance with dealing with the issues without resorting to formal processes and procedures, you can speak to your mediator about Conflict Coaching to help you self-manage the situation. 

Mediation can only succeed whereby everyone involved agrees to proceed and acts in good faith to find a resolution. If one or more parties do not engage properly, mediation is not suitable. 

Failure to accede to a good faith offer of mediation can affect the cost outcome to the extent a party refusing mediation may win the case but have to pay the entire costs of proceedings. The English courts in particular retain a great deal of discretion over the award of costs in such circumstances

Conflict Coaching may help individuals manage conflict, alternatively, you may need to seek professional advice as to your next steps. 

If you do not have a lawyer but would benefit from advocacy, I offer mediation advocacy. The role of your Mediation Advocate is to support you and provide a voice where you may struggle if you are entirely on your own. Please talk to your mediator about this service.