Mediation - Frequently Asked Questions
| Author | Stephen Walker/David Smith |
| Pages | 203-210 |
Mediation – Frequently Asked Questions
This section is intended to be photocopied and given to your clients to advise them on mediation. You are free to copy this section for that purpose only, provided that you do not use the copies for any other commercial purpose and ensure that the following attribution is clearly displayed:
Extracted from Advising and Representing Clients at Mediation by Stephen Walker and David Smith, published by Wildy, Simmonds & Hill (2nd edition, 2019)
What is mediation?
Mediation is a process of assisted negotiation between the parties to a dispute. The assistance comes from a professional neutral, a mediator. The mediator meets with the parties and their representatives and helps them to come to a settlement. The mediator is not a judge or an arbitrator, but acts as an honest broker trying to help the parties to come to a deal. Mediation is a process for making peace. It is the opposite of litigation, which can be a process for making war. The mediator will analyse the dispute, consider the pros and cons of settlement, and help the parties achieve a lasting settlement. The mediator will not take sides and will not say that one party is right and the other wrong.
Is mediation compulsory?
Mediation is not compulsory. However, if you do not enter into a mediation, then you are taking some big risks. Judges do not like parties who refuse to take part in mediation and then want to litigate in court. In addition, by refusing you may be missing out on a great opportunity to settle your dispute quickly, cheaply and confidentially. After all, you are not obliged to settle at mediation if the terms on offer are not attractive to you.
If I refuse to mediate can I be forced to?
You cannot be forced to mediate. However, the court can make you file a witness statement as to your reasons why you do not want to mediate in
204 Advising and Representing Clients at Mediation
advance of the main hearing and this statement will remain sealed until after the decision has been made. It will then be considered carefully when deciding who should pay legal costs and how much they should pay. It is possible, and has happened, that a court will decide that a party who has refused mediation unreasonably should have to pay the other side’s legal costs, even where they had actually won the case. In addition, parties who are found to have refused mediation unreasonably are often required to pay costs on an indemnity basis. That means paying all the other side’s legal costs without any consideration of whether they are excessive. It is perfectly possible to win a case and end up paying the other side more in legal costs than you receive in damages because you have been found to have unreasonably refused mediation. It is rare for a court to accept that a refusal to mediate is reasonable. Remember that mediation is an assisted negotiation. You can be pushed, and pushed hard, to attend but you cannot be made to take part and nobody can force you to agree a settlement.
What if I want justice in court? – mediation will not give me that
The first thing to consider is what you really want. Courts do not give ‘justice’ in the sense that most people desire. Courts rarely criticise one party’s behaviour and, often, they do not or cannot give parties all they seek. In fact, many people leave court, even as victors, feeling dissatisfied with the judgment they have received. Of course, one side is guaranteed to leave court feeling dissatisfied because they will have lost. Mediation is the opportunity to avoid that and to find your own solution to the problem, rather than having someone else impose a solution.
Surely my dispute is unsuitable for mediation?
Mediation has been used...
To continue reading
Request your trial