Mediation: What Is It and How Does It Work?

Year Published: 2020

Mediation is a form of Alternative Dispute Resolution which can be a highly effective tool to bring a dispute to a conclusion (saving management time and legal costs). It can be used both before legal proceedings are commenced and at any stage of legal proceedings.

Mediation is a voluntary and confidential method of Alternative Dispute Resolution. A Mediation is also “without prejudice” which means that the discussions that take place cannot be referred to as part of any court proceedings.

The Process

A Mediator is jointly selected and appointed by the parties and a date will be agreed for the Mediation to take place. Prior to the COVID-19 pandemic, the Mediation was usually a face to face meeting at which the Mediator, the parties and their legal representatives would attend. Mediators and legal representatives have quickly adapted and Mediations are currently taking place by way of video conferencing and telephone.

It is important to note that the Mediator is not there to act as a judge; but is a skilled and experienced professional working with the parties to help them find and agree a sensible resolution.

The advantage of Mediation is that the resolution can be flexible and may include terms that a court would not be at liberty to order (but the parties are at liberty to agree).

Can a Mediation Invitation Be Refused?

An invitation to mediate needs to be considered carefully. If a party is deemed to have unreasonably refused an invitation to mediate, there can be costs sanctions for that party later down the line. Whether a refusal is “unreasonable” will be judged on the facts and circumstances of the individual case that existed at the time of the invitation.

It is important to take advice before refusing or ignoring an invitation to mediate made by the other party.

For further information and guidance on Mediation, please contact Anna Barnes, Partner, on 0161 475 7655 or email [email protected].

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