What is mediation and how does it work in practice?
Mediation is without prejudice, voluntary, confidential process where an independent third party (the mediator) holds discussions with the parties in an attempt to encourage them to reach a negotiated settlement.
The confidentiality of the process encourages the parties to be frank and forthcoming with their settlement offers and views on the dispute generally, as anything said or written cannot be used in later proceedings.
The mediator cannot impose a settlement (like a judge or arbitrator) and will not make a decision in the case. It is not the mediator's role to give advice but if asked they may give an option if they think it will help with the parties.
There is no rigid procedure or form which mediation must follow. The mediator will usually start the mediation by explaining their role to the parties and usually encourages the parties to take advantage of the opportunity to settle which is created by both parties agreeing to attend mediation. The introductions may take place with parties in the same room, or separately.
Most of the mediation will see the mediator speaking with the parties separately. The parties will be given their own separate private room for the mediation so that they can take legal advice and discuss matters that arise in the mediation privately. The mediator will try to act as an impartial facilitator to lead the parties to a settlement. Everything that you tell the mediator in confidential and it cannot be disclosed to the other party, unless you authorize it.
It is common for parties to start off far apart but for the gap between them to narrow as the day progresses, and parties are prepared to release information to each other. As in part it is a negotiation process, offers and counter offers are put, and hopefully a settlement is reached. If a settlement is reached then usually the settlement is drawn up and signed by the parties at the mediation.
If court proceedings have already started then the settlement will be drawn a form which the Court will approve, usually by the parties legal representatives. Often if a settlement is reached, having spent months or even years arguing, the parties shake hands having concluded a commercial deal which avoids further litigation.
If settlement is cannot be reached, then the mediation ends. It does not necessarily mean that it has been a total failure, as the parties will have tested the strengths and weaknesses of each other's case, and heard how far they are prepared to negotiate. Settlement often follow initially "unsuccessful" mediations.