Mediation is a voluntary process which can take place any time before or during court proceedings. It is confidential and ‘without prejudice’, so that whatever is said during the mediation process cannot be quoted or used in court proceedings save in exceptional circumstances. It can be stopped at any point by either of the parties.
Mediation has a real advantage over litigation as difficulties in communication between the parties are frequently ameliorated and creative and practical solutions can be found during the mediation process. Many times parties can agree in mediation issues and terms which litigation simply would not provide. The process can provide a much more effective outcome for all parties who have actively contributed to the end result.
Just as courts in England and Wales are actively promoting mediation and in some instances oblige the parties to consider mediation before embarking on litigation, Thomas More Chambers also encourages this alternative mode of dispute resolution which can provide quicker, more cost effective and more certain outcomes.
The mediation process
Here’s a quick step-by-step guide to how mediation works:
• The mediator establishes contact (by phone or, when possible, in person) with each party beforehand and relevant information is shared by each party and the mediator.
• If possible, all parties will meet for confidential discussions, both separately with the mediator and, if agreed, face-to-face with each other.
• Whatever information shared with the mediator by each party is confidential and only disclosed to the other party by prior agreement.
• The mediator’s role is to help parties to engineer a ‘good’ solution and to find agreement. They may help a party test the strength of a case in private and may suggest how a proposed solution might be received by the other party. However, a mediator will never take sides.
• In Commercial Cases, if a way forward has been reached, a written, binding agreement is drawn up immediately by the parties summarizing the terms of the settlement and the steps to its implementation.
• In Family Cases a Memorandum of Understanding will be prepared at the end of the sessions. The Memorandum of Understanding is written in terms which will cover all of the legal points making it easy for the clients or the client’s lawyers to prepare the appropriate legally binding documentation.
In person or online?
In-person meetings remain the preferred option since they enable claimants and defendants to meet face to face, sometimes for the first time ever, which often plays a key role in paving the way for innovative solutions.
However, the new possibilities offered by videoconferencing enable quite effective mediations, particularly in our current pandemic context with lockdown measures or impossibility for parties to travel.
Zoom is our preferred platform, as it offers password locked participation, waiting room, break-out rooms guaranteeing confidentiality of exchanges. But we are happy to use other platforms that parties would prefer. Our mediators are properly trained and experienced in the handling of online processes.
Experience shows that the results of online mediation are quite satisfactory, especially when physical meetings are made impossible by circumstances.
The Early Intervention process
Sometimes a dispute between two parties is brewing and one party recognises the potential benefit of mediation or communication outside of the legal framework, but can’t address or offer this possibility to the other party for whatever reason (fear of appearing weak, absence of communication channel, no acquaintance with the other principals, etc…).
In these cases, Early Intervention is an exploratory process and ‘active communication’ channel, that may prevent the dispute from escalating into an uncomfortable and costly situation. It requires for both parties to agree to adhere to Early Intervention Terms (with strict confidentiality and without prejudice in any litigation or arbitration proceedings, like in a mediation).
During the first step (called Initial Exploration, see below) the Mediator provides his services for up to one hour per party free of charge (not exceeding three hours in total in multi-party disputes). This consultation may also be quite useful for the principal or for the party’s solicitors and counsel who may be unfamiliar with normal mediation processes.
Beyond this first step, Early Intervention is a very flexible process and there is no standard procedure. The Mediator has very wide discretion to decide upon the most appropriate procedure in each case. The mediator shuttles between the two parties discovering the nature of the conflict, helping to clarify the key issues and concerns for each party and bridging to channel information (within confidentiality boundaries) and rebuild communication. A roadmap can be designed and possibly a mutually acceptable settlement of some or all of the issues.
Here’s a quick step-by-step guide to how Early Intervention works:
• One party seeks out the mediator for Early Intervention.
• The asking party and the mediator agree on the best way to reach out to the other party and to explore its willingness to commit to Early Intervention Terms. The mediator moves to next step only if parties have agreed to Early Intervention Terms.
• Any of the parties or the mediator can terminate the process at any time.