About Mediation

What’s so special about mediation?

In 2009, a new ACAS code was published encouraging the use of mediation for workplace conflict.  In 2010, the Ministry of Justice published a long report by a very experienced Appeal Court Judge because of real concerns over the high cost of litigation and access to justice through the courts.  The findings, amongst other things, were that:

• Mediation is the most important form of ADR (alternative dispute resolution).
• It has a vital role in reducing costs in resolving disputes.
• It is under-used at present.
• Its considerable benefits are not widely known (even in the legal sector).
• An awareness raising campaign is needed with the public and businesses.

Mediation is recognised as one of the fastest and most cost-effective routes to achieving settlement to a dispute.  The CEDR mediation survey 2010 shows that its use has grown about 10% per year for the last three years, and there is no sign that this growth is slowing.  Going to trial/tribunal is expensive and stressful, often taking months or years of costly litigation or wasted staff time laboriously going through procedures, with no guarantee of an outcome that satisfies the parties when you get to the end of the process.

With the need for the government and businesses to save money, mediation is now being 'pushed' by legislation.  It began with family law and government consultations for employment and civil litigation cases show what their intent is - mandatory mediation or mandatory mediation information and assessment sessions, depending on the size of the case.  Mediation is the future for conflict resolution.

What is mediation like?

Mediation is a form of Alternative Dispute Resolution (ADR) which can be used to solve large or small issues alike. It is not arbitration and the mediator is not a judge. It is a voluntary and confidential process for resolving disagreements in which an impartial third party (the mediator) helps people in dispute find a mutually acceptable resolution without having to resort to going to court/tribunal or having an irreconcilable relationship breakdown. It can also happen at any time in the ‘life’ of a dispute – if an agreement is not reached (about 80-90% do, on average), the parties are free to pursue other options, like going to court.

Mediation is characterised by the following:

• It is voluntary and consensual.
• It is private and confidential.
• It focuses on ‘needs and interests’ (looking to the future) and not on ‘rights and liabilities’.
• It aims for collaborative problem solving between those in dispute, reaching a 'win/win' situation which is acceptable to all.

The parties decide whether an agreement can be reached, and they control the nature and the terms of it. As the mediator does not impose any resolution or settlement or terms of an agreement upon the parties, there is not the inevitable ‘win/lose’ situation that accompanies litigation, tribunals or official workplace procedures. The parties have complete control of the outcome (in conjunction with their own advisors, if present). Consequently, the parties are removed from the ‘coercive’ atmosphere of official or legal procedures. They are entitled to withdraw from the mediation process at any time, and are not bound by anything said or agreed until such time as they sign a settlement agreement. However, once the agreement is signed, the settlement can become as legally binding and enforceable as the parties wish – this is agreed prior to the mediation.

The mediation is held not in public but in private, and one of the fundamentals of the process is that it is confidential and without prejudice. Anything disclosed during the mediation is disclosed ‘without prejudice’ and cannot be used outside or in later proceedings should the parties fail to reach agreement. Any information shared by one party with the mediator will be treated in confidence and the mediator should not pass it on to the other party without specific permission to do so.

The reason for the failure of many lengthy and protracted negotiations or workplace procedures is that the parties all too readily fall into entrenched positions and are unable to or find it very difficult to overcome the impasse that results. These positions derive from a preoccupation with rights and liabilities, entitlements and obligations. Unlike litigation etc, which determines what happened in the past, why it happened and whose fault it was, mediation looks to the future and encourages parties to re-evaluate their aims and objectives in the dispute by re-examining their current and future needs and interests.

Why mediate?

Sometimes you have to mediate or are strongly encouraged to by the courts or by recent employment legislation. This is because of the value that mediation brings to the dispute resolution process. Here is a summary of what the key benefits are.

Success – approximately 80-90% of cases mediated are settled on the day or shortly afterwards.

Speed – once all parties agree to mediate, a date will be set as quickly as possible and most cases are usually resolved within one day. Running a case to trial or following an official procedure often requires considerable management time – this haemorrhage can be stopped quickly with mediation. 

Cost – because mediation is such a swift process, parties save money on legal fees and procedures and companies can quickly return to building their business. 

Control – parties remain in control of the outcome and nothing is set in stone until the settlement agreement is signed. Instead of a judge deciding a ‘win/lose’ outcome, the parties agree a solution that everyone can live with and that will allow them to move on. Unlike court decisions, the outcome cannot be appealed.

Confidentiality – all mediation discussions are private and ‘without prejudice’ meaning that they cannot be used in evidence if the case goes to court etc. This means that negative publicity or adverse effects in the workplace (e.g. through gossip) are minimised.

Stressbusting – legal and workplace processes are adversarial and can get very unpleasant and stressful. Talking to a neutral mediator will help resolve issues in a controlled way. Even if you were to win a court case, you can make an enemy for life, whereas with mediation you could continue to work or do business together.

Theraputic – it allows the parties their ‘day in court’ more effectively than by going to court itself - allows each person in dispute to be truly ‘heard’, to have their full and frank say to the mediator as well as to the other side in a ‘safe’ environment. It also facilitates apologies to be given or explanations made.

Breadth – mediation goes deeper than examining the legal positions and explores what the parties really need in order to resolve the conflict and to move on – this can include issues which, on the face of it, are unrelated to the stated dispute. This means that all types of resolution options may be considered including apologies and donations to charity.

Flexibility – because mediation is not an official procedural process, the mediator can adapt techniques or the way the day (or agreed period) progresses to ensure the best possible chance of reaching settlement for the parties.

Relationships – parties who end up in court, with a winner and a loser, will rarely be able to continue any commercial, trade or other relationship; whereas mediation allows parties to reach settlements with which they are both content, thereby enabling them to continue with pre-existing business and/or personal relationships. 

How we mediate