Mediation: What to Expect

Mediation: What to Expect

Author: Rachel McCulloch

Key Contact: Aisha Wardell

Mediation is a widely used form of alternative dispute resolution (ADR), aimed at resolving disputes without the need for court proceedings. Parties can agree to attend a mediation at any point in a dispute, from early on before formal proceedings are issued, right up to the date of trial.

Following the Court of Appeal decision in Churchill v Merthyr Tydfil [2023] and changes to the Civil Procedure Rules (CPR), courts in England and Wales can now order or encourage parties to engage in ADR. You can find out more about the changes to the CPR here.

If you have an upcoming mediation, or you are contemplating mediation, this is what you can expect.

Preparation before mediation

1. Choose a mediator. A mediator is a neutral third-party who helps keep discussions focused and productive. A mediator does not make or enforce any decisions. Usually, one or both parties will propose a couple of mediators and the parties will attempt to agree on who to use. Your legal representative can help you chose a mediator based on their experience.
2. Exchange position statements and prepare documents. Parties usually prepare and exchange positions statements which sets out their position. It is a key document for the mediator as it helps them understand the case. The parties will also produce a bundle of key documents for the mediator and the parties to use during the mediation.
3. Consider your position and plan. Before a mediation it is very important to consider your objectives and the types of offers you would be willing to make/accept. You should go into the mediation knowing your bottom-line and what compromises you would or would not be willing to make to reach a settlement.  

Attending the mediation

1. Opening session. The mediator begins with explaining the rules and the process to each party, either separately or in a room together. They will explain the mediation is a confidential process. If the parties agree to an opening session, each party will usually make an opening statement which briefly sets out their position and objectives.
2. Private sessions. After the initial opening session, the parties normally use separate rooms. The mediator will shuttle between the parties to communicate offers or potential solutions which have been given by the other party. The mediator may provide feedback but will leave you to discuss any offer received, or offers you may want to make, with your legal team.
3. Negotiation and settlement. The aim of mediation is for the parties to reach a settlement agreement that they both find acceptable. To reach an agreement, the parties should consider making compromises. If a settlement is reached, the legal representatives will usually draft a legally binding settlement agreement which the parties will sign.

If no settlement agreement is reached at the mediation, the parties can continue to pursue and defend the claim. Usually, the mediation has still been productive and useful as it will help to narrow the issues, or help the parties understand the other party’s position better.

Whilst the above procedure is typically followed, every mediation is different, and the process will depend on what the mediator proposes and what the parties want.

If you have a dispute you want to pursue, are considering mediation, or would like more information, please contact our Litigation team.