FREQUENTLY ASKED QUESTIONS
- What is mediation?
- What is ODR?
- What are the advantages of mediation?
- What kind of disputes or disagreements can be referred to mediation?
- What happens during online mediation?
- What is the role of the Mediator?
- Will mediation work?
- How long does mediation take?
- I would like to mediate, what do I do next?
Mediation is a voluntary and confidential process for resolving disputes in which an unbiased third person (the Mediator) helps people in dispute to find a mutually acceptable resolution without going to a Court hearing.
Mediation is a non-adversarial procedure at which a neutral, trained professional assists the parties in reaching a settlement of a dispute or difference.
Mediation is quite simply a process of finding a solution that the parties can live with.
ODR stands for online dispute resolution or put another way, online mediation.
The only difference in ODR is that the parties won't ever meet. Communication will be over the internet or via telephone.
Conducting mediations wholly online provides the opportunity to extend the benefits of mediation to many disputes that otherwise would not be able to benefit including:
- Disputes between parties who are too geographically distant to enable a meeting to take place.
- Disputes where the value of the subject matter of the dispute is not sufficiently high enough to justify the cost of a meeting based mediation.
- Disputes where there are sensitivities between the parties that would be at risk of exacerbation by a meeting.
- Disputes where one party cannot attend a meeting due to severe disability.
What are the advantages of mediation?
Mediation can generally be undertaken quickly (it is sometimes possible for a mediation to be arranged at 24 hours notice), and is generally far cheaper than litigation and is far less traumatic for the parties than having to attend Court and give evidence.
Mediation aims to bring the parties involved together to try and achieve a result that is acceptable to both parties.
Compared to a Court room, mediation is a less hostile and intimidating atmosphere in which to resolve disputes.
In mediation, the parties to the dispute control the mediation process and ultimately control the outcome, which is something that certainly does not happen if a case is decided by a Judge.
The parties and their advisers remain in complete control and ultimately they decide whether and how a case will be settled.
Mediation is also confidential. Nothing said during a mediation can be used in Court proceedings at a later date and any agreement reached can be confidential rather than the parties having aired their dispute in a public Court. The advantage of mediation is that it can clarify a dispute by identifying and defining the issues that need to be resolved.
Mediation can also overcome or reduce communication problems between the parties. Mediation allows the parties to acknowledge each other's feelings and focuses on the parties? needs and interests, whereas Court proceedings focus on legal rights, wrongs and duties. Mediation has no such restrictions. A solution that is more creative, beneficial and fair may emerge from a mediation.
If successful, mediation can improve communication between the parties and can encourage them to adopt a more cooperative approach in their future dealings.
Mediation offers savings in time (particularly management time) and costs.
No legal precedent is set by the agreement reached in mediation.
When parties reach their own agreement, a high rate of compliance is achieved, so problems of enforcement of a mediation agreement are rare.
Mediation offers closure on a dispute and an opportunity for the parties to put the dispute behind them. Litigation only offers an ultimate winner and an ultimate loser and usually only closure for one side.
Another advantage is that there is surely nothing to lose by trying mediation, since Court proceedings are not compromised. Even if an agreement is not reached, the parties can continue their legal action.
What kind of disputes or disagreements can be referred to mediation?
Basically anything.
Lord Justice Dyson, Master of the Rolls said in the Court of Appeal in May 2004:
"All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for alternative dispute resolution?"
He also stated that in all his experience he had never dealt with a case that he did not think could be resolved by mediation.
Mediation can resolve disputes between companies, communities, neighbours and employers and employees.
What happens during online mediation?
Each Mediator has their own method of dealing with the mediation process. Most Mediators prefer to work with the parties separately throughout the process, bringing them together in a joint session if agreement is reached or nearing agreement.
The Mediator will explain the process to the parties and set out the ground rules for the mediation. These will include:-
- Signing up to a mediation agreement
- Explaining that the process is confidential and without prejudice
- Explaining that the process is voluntary and that the parties are free to terminate the process at any time.
The Mediator will usually ask each party to provide a summary briefly setting out what they believe the case is about. The Mediator will then suggest a series of confidential private exchanges with the parties.
Everything the parties say to a Mediator during the private sessions is confidential, although the Mediator may seek permission of either party to release certain facts if they are likely to assist in the mediation process.
During private sessions the Claim, arguments and positions are discussed and analysed.
The parties are free to discuss matters with their legal advisers at any time.
It is important to note that whilst the Mediator may be a lawyer (but not always), he/she is not a Judge and is not able to decide any part of the case and is not able to give legal advice to either of the parties.
It is important that the parties that participate in the mediation have a commitment and authority to settle a dispute.
The Mediator will in the private sessions carry out "reality tests" to enable the parties to independently assess their positions.
What is the role of the Mediator?
To give the parties hope!
The Mediator will encourage the parties to look forward not backwards.
The Mediator will in the private sessions carry out "reality tests" to enable the parties to independently assess their positions.
Research suggests that 80% of commercial disputes that are referred to mediation reach agreement.
There is one school of thought that maintains there is no such thing as an unsuccessful mediation. Even those disputes that do not reach agreement on the day, may reach agreement weeks or months later, as the parties have the opportunity of hearing the other side, acknowledging feelings and this may prompt the parties to settle at a later date.
If agreement is reached, the parties will be required to draw up a mediation settlement agreement, which the parties or their lawyers (if any) can produce to the Court (if required) in order to conclude proceedings.
A mediated agreement can result in a settlement which would not have formed any part of a Court Judgment, but ultimately would work for the parties.
- It may be that an agreement can create value and the parties continue trading with each other.
- Takes into account the parties' respective personal, emotional business or commercial needs.
- Preserves a relationship that can leave both parties with a "win win" agreement, or to put it another way an agreement in which they equally share the pain!
It depends. ODR Mediations will be time limited and the parties will agree a time and date on which the mediation process will end. An extension to the time period will only be granted in exceptional circumstances.
I would like to mediate, what do I do next?
You can contact the Property Mediation Zone panel by telephone or email. In the first instance either complete the online enquiry form or contact Shaun Jardine on Tel: (0)1295 270999 or shaunjardine@brethertons.co.uk
Brethertons LLP
Strathmore House,
Waterperry Court,
Middleton Road,
Banbury,
OX16 4QD
"Judgement, not passion should prevail" - Epicharmus
