How is mediation different to negotiation?

Negotiation whether conducted by correspondence, over the phone or face to face is invariably one party putting an offer on the table for the other party to counter-propose.

Neither party is honest to the other about their strengths and weaknesses and neither offers or accepts at the first round. Parties rarely explore other settlement options and are fearful of disclosing too much to the other side to have particularly open and honest talks to facilitate settlement.

By virtue of the mediator’s independence, impartiality and confidentiality they are able to understand what the true barriers are and where settlement options may lie at an early stage. By virtue of both parties and all decision makers being together at one point (like at trial), this invariably focuses the minds of all to settle the dispute.

Isn’t proposing mediation a sign of weakness or an admission of failure?

Certainly not. People usually propose mediation when they are fairly confident of the merits of the case but concerned about the economics and the time that it may take to conclude.

Doesn’t mediation involve a loss of control?

Quite the contrary. Mediation gives the parties much more control. The matter will not be argued out by lawyers, reviewed on technicalities or decided by a judge who knows little about the individuals or the circumstances of their case. As the mediator has no authority to impose a decision it is the parties who decide upon what terms they wish to settle on.

Doesn’t mediation mean more work and more expense?

Mediation saves time and money. Although mediators are all highly trained professionals, mediation itself is not expensive and we try to identify appropriate mediators for each budget.

Obviously if the parties intend to be legally represented at the mediation then they also need to include those costs. A successful mediation will save time and money but even an unsuccessful mediation often helps to clarify a number of key issues which will cut down dramatically the time necessary for preparing for trial.

Who chooses the Mediator?

Whilst it is usual for one party to make the initial request for a mediator, both parties must approve the appointment of a mediator. Our mediation Case Advisors will discuss with both parties the type of mediator that is being sought and will then forward a short list to both parties to agree upon.

Should a legal representative be present in the mediation?

It is not essential for the parties to be represented although it is commonly adopted. Certainly where there are complex issues or fundamental questions to the case still to be answered then it may be crucial.

For small value claims the cost of having a legal representative attending may well outweigh the benefits although this is something that should be considered on a case by case basis. One option for these types of cases may be to have a representative available by telephone.