Mediation is a form of Alternative Dispute Resolution. It is a voluntary process which can take place at any time before, or during court proceedings. It is confidential and ‘without prejudice’, so that whatever is said during the process of mediation cannot be quoted or used in court proceedings save in exceptional circumstances. It can be stopped at any point by either of the parties who participate in mediation.

The mediation procedure offers real advantage over litigation, as difficulties in communication between the parties are frequently ameliorated and creative, practical solutions can be found during the mediation session. Because it is less formal, parties who attend mediation often reach agreement on terms that litigation could not cater for. Our mediation service can provide a much more effective outcome, for the parties who have actively contributed to the end result.

The courts in England and Wales now actively promote mediation, and in some instances oblige the parties to consider mediation before embarking on litigation. At Thomas More Chambers, our experienced mediators also encourages this method of dispute resolution because disputes are more swiftly resolved, less expensive, and with more certain outcomes.

The Mediation Process

Here is a quick step-by-step guide to how mediation works:

• A neutral mediator establishes contact (by phone or, when possible, in person) with the parties, and relevant information is shared with the mediator by each of the parties involved.
• If possible, all parties will meet for confidential discussions - both separately with the mediator and, if agreed, face-to-face with each other.
• The confidentiality of information shared with the mediator is preserved, and information is only disclosed to the other party by prior agreement.
• The mediator understands that disputes can be highly stressful and emotionally charged. Their role is to help parties to engineer a ‘good’ solution and find constructive agreement. They may help a party test the strength of a case in private, and may suggest how a negotiated solution might be received by the other party. However, a mediator will remain impartial and does not take sides.
• In Commercial Cases, if a way forward has been reached, a written, binding Settlement Agreement is drawn up immediately by the parties summarising the terms of the settlement and the steps to its implementation.
• In Family Law mediation, 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 client or their 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 grievances or disputes between the parties are brewing, and one party recognises the potential benefit of mediation outside of the legal framework, but feels unable to offer this possibility to the other party (for 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 an ‘active communication’ channel, which might prevent the dispute from escalating into a more uncomfortable and costly situation. It requires 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 their services, free of charge, for up to one hour per party (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.

Quick 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 are in agreement to implement Early Intervention Terms.
• Any of the parties or the mediator can terminate the process at any time