Guide to successful mediation

Mediation is a flexible, voluntary and confidential form of alternative dispute resolution (ADR), in which a neutral third party assists parties to work towards a negotiated settlement. The benefit is that the parties retain control and can structure a settlement to suit their specific requirements.

The aim is to be able to reach a conclusion sufficiently satisfactory in order to draw a line under the dispute. The mediator will often provide guidance through the issues in order to assist the parties to find a resolution.

The Court expects parties to engage in ADR. A party who unreasonably refuses ADR can be penalised in costs. The Court set out guidelines in Halsey -v- Milton Keynes General NHS Trust [2004] when considering costs. The burden is on the unsuccessful party to show why there should be a departure from the general rule (that costs should follow the event) and would have to show that the other party acted unreasonably in refusing to agree to ADR. In determining unreasonableness, the Court must have regard to all the circumstances which will include, amongst other items whether the costs of ADR would be disproportionately high and whether setting up and attending the ADR would be prejudicial.

In Carleton and others v Strutt and Parker (a partnership) [2008] EWHC 424 (QB), it was held that where the party agreed to mediate but then caused it to fail by putting forward an unreasonable position was the same as refusing to mediate and such conduct should be taken into account in the order for costs.

In order for a mediation to be successful the parties must be open to settlement.

Strategic approach to mediation

A sensibly advised party will have a game-plan and will have given careful consideration to its “wants” and “needs” before the mediation. It is important not to be too rigid and to be open to new ideas. A party should focus on its “needs”, as these are central to the mediation and be prepared to compromise on its “wants”.

The mediation is not the appropriate forum for sophisticated games. If your objective for the mediation is to gain a tactical advantage in subsequent litigation, then mediation is not going to be successful.

Be ready to listen to what the other side has to say. Sometimes, a mutual and new understanding of respective positions will emerge from the mediation which may assist in progress being made.

A mediation can be a long and stressful day. You will need energy, patience and persistence. So, stay fuelled and take regular breaks. Try to stay positive that a deal is going to emerge from the process.

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