Mediation is a form of assisted negotiation using an independent mediator to help parties in dispute to reach a mutually acceptable settlement.
It is a very common form of Alternative Dispute Resolution that the courts strongly encourage and clients and their lawyers find highly beneficial.
Although mediation is entirely voluntary the courts can impose serious costs sanctions on a party who refuses to attempt mediation without good reason.
Mediation can take place before or during proceedings.
At the mediation each side is given its own room and the mediator acts as an impartial ‘go-between’ in turn visiting each side in private.
Although specifically trained in mediation techniques the mediator will not act as an adviser to either side.
The mediator does not decide anything and is not there to give any judgment on the dispute or to impose anything on the parties.
However the mediator will often subject each side’s stance, arguments and evidence to fairly robust "reality checking" but this will be done with appropriate sensitivity and always in the absence of any opposing party.
Any agreement reached by mediation is binding only if it has been reduced to writing and signed by the parties or their lawyers. Once signed it can be enforced just like any other contract.
The mediator acts in the strictest confidence. The mediator must obtain the specific consent of a party before that party’s proposed offer can be taken to the other side. Similarly, if a party tells the mediator something in a private session then it cannot be revealed to the opposing party without the first party’s prior consent.
This strict confidence enables the parties to be far more candid with the mediator about, for example, their own appraisal of the strengths and weaknesses of their case or the terms upon which they might ultimately be prepared to settle than they could ever be with their opponents. This is one of the reasons that mediations are so often successful.
A successful and well-timed mediation will:
Most mediations result in a settlement either on the day or very shortly thereafter.
Even where mediation fails to achieve a settlement the parties are usually left with a far better understanding of the strengths and weaknesses of their case and will not suffer costs penalties for failing to attempt mediation.
If necessary, mediations can be set up very quickly.
Mediations are efficient and compressive when properly run. The ‘back and forth’ of negotiations, the identification and management of blocks to settlement and the catharsis that some parties may need to undergo to become amenable to a sensible agreement, can be conducted in a matter of hours rather than weeks or months. The mediator will use specific skills to achieve such objectives while maintaining the appropriate momentum and pace that inevitably starts to flag in standard joint settlement meetings when the parties’ positions seem unbridgeable.
Mediation is highly flexible. It can deal with all or only some of the issues that are in dispute. Even where mediation achieves settlement of only some of the issues this usually results in worthwhile savings.
Mediation can cover matters outside the current dispute or the powers of the court. Courts can do little more than declare and enforce rights arising from specific claims. Mediation can assist with matters far beyond the current disagreement and can be used to achieve outcomes that no court could order. For example, a mediation settlement agreement in a commercial case can deal with aspects of future mutual trading as well as the resolution of the immediate argument.
Mediation is private. Unlike most court and tribunal cases mediation is completely confidential at every stage. Agreements reached through mediation invariably contain confidentiality clauses. Of course that does not prevent any of their terms from being enforced if they are broken.
Mediation is entirely without prejudice. Although a court or other tribunal may often be told that mediation has taken place or is proposed, absolutely nothing of what may be conceded, offered, said or done during the mediation can be revealed without the agreement of all the parties.
Mediation does not involve any compulsion. The parties are not forced to reach any agreement in the mediation. If they do settle then it is because they have appreciated that the deal on the table is better for them than the dispute remaining unresolved and, for example, proceeding through the court to a trial with all the risks, costs and delays that entails.
Mediation gives the parties far greater control of their dispute so, for example:
The experience of the Ropewalk Mediators Team is that almost all mediations they are involved in have resulted in an overall settlement either at the mediation or quite shortly thereafter.
The team's experience is that mediations in which they have been involved, whether as mediator or a mediation advocate, achieve full settlement significantly more often than the national average (which is about 75% according to the Academy of Experts).
However, no guarantee of success can ever be given in the individual case and, of course, some cases (for example, where a binding legal precedent must be set or injunctions are required) are simply not suitable for mediation.
The Ropewalk Mediators Team is headed by Stephen Beresford.
The team comprises the following trained mediators, who are all ADR Group accredited:
Our mediators can cover the fullest range of mediations in terms of both dispute value and subject matter.
Although it is not essential for a mediator to be a lawyer with plenty of litigation and advocacy experience it is generally accepted that it is a substantial advantage. All Ropewalk mediators:
Our Standard Mediation Agreement can be found here.
Ropewalk mediators provide their services at rates that are competitive and will be found to offer very good value for money.
In addition to fielding a team of trained and accredited mediators, we take particular steps to ensure that all its barristers are well versed not only in advocacy and negotiation techniques generally but in the special skills necessary for successful mediation. These include getting lay clients, instructing solicitors and any attending experts fully attuned to and ready for the process, advising upon the form and content of mediation bundles, drafting documents such as position statements and mediation settlement agreements and conducting each stage of the mediation in a manner that secures an outcome with which both the professional and lay client will be satisfied.
The recent refurbishment of Ropewalk Chambers has secured convenient, attractive, modern premises with a large range of rooms purpose designed for mediations, joint settlement meetings and video conferencing.
We offer the free use of such rooms and facilities wherever any member of Ropewalk Chambers is engaged as the mediator or a mediation advocate.
Regular refreshments (including a buffet type lunch) will also be provided free of charge. Any special dietary or other requirements should be discussed in advance with a member of the clerking team.
Ropewalk Chambers has the benefit of being located in a major city and is easily reached by car or public transport – please click here.
We are very willing to travel nationally to attend mediations but it can be readily seen that conducting mediations at Ropewalk Chambers offers significant advantages to the parties and their advisers.