In a “Mediation Special” in this month’s issue of Counsel, Kate Aubrey-Johnson outlines what mediation is: a form of alternative dispute resolution (ADR) and a voluntary process “in which an independent and impartial third party (the mediator) facilitates discussions”. She also outlines what mediation is not: the mediator does not seek to impose a solution on the parties, or provide an expert determination on the case. Similarly the process does not seek to determine “truth” or assign fault or blame.
One of the benefits of entering into mediation is that the process is all confidential and without prejudice. This allows open discussion within the mediation that, save in exceptional circumstances, could not be admitted as evidence later in court. After a settlement has successfully been reached, an agreement is usually drafted in a way that allows any part of it to be enforced by the courts if that should become necessary at a later stage.
In the same feature, Sir Henry Brooke, who has seen nearly 200 civil mediations, explains the benefits of mediation. Chief among them is that a skilled mediator can achieve results by consensus that both parties come away feeling happy with. Additionally he describes some of the non-financial settlements that parties would have struggled to achieve in court: returning a clock of huge sentimental value, returning a dead relative’s locket of hair, and an apology from a senior police officer. But when it does come to financial disputes, Sir Henry identifies claims in the £10,000 to £100,000 bracket as presenting some of the best opportunities to mediate. At this level, parties are reluctant to enter into litigation because of costs and the risk of a costs order. Mediating at the pre-issue stage before costs begin escalating can often yield successful outcomes.
To read the full set of articles, see “Mediation Special”, Counsel, October 2012, p20-28.