A Typical Mediation
When you Can Mediate
Mediation is available as a form of alternative dispute resolution (ADR, or nowadays DR), at any stage either prior to the commencement of formal legal proceedings or indeed at any time up until the final hearing if formal proceedings have already been issued (whether in a court, arbitration or tribunal).
Who Can Attend the Mediation
Besides the participants themselves, mediations can also be attended by their representatives, such as lawyers, consultants, and experts (that is to say, if the participants have them, which will not always be the case). All persons attending the Mediation will sign a confidentiality agreement, and be bound by the Latitude Mediation Rules for the Mediation.
Prior to the Mediation
The participants’ agreed mediation format may involve themselves or their representatives preparing some documents in advance of the mediation, to assist the mediator’s understanding of the issues at large. Such documents might include evidence relied on, any pleadings already prepared during legal proceedings, or simply a short summary from the participants. If being prepared, these should be sent to the Mediator for consideration around a week before the Mediation.
At the current time, most mediations will be conducted using an online platform and video conferencing, now referred to as Online Dispute Resolution or ODR (although in-person, or indeed ‘blended’ mediations are also available if desirable). Participants are able to mediate virtually from home and we will assist fully in instigating and running the process, including a practise call prior to the mediation if helpful.
On mediation day there isn’t, nor is there really designed to be, a strict formula for how the mediation progresses; it is a deliberately dynamic process, for optimum effectiveness. Importantly, participants are able substantially to control how the mediation is run. This means, for example, that it can be open to the mediating participants to decide the venue, how the mediation is compartmentalised into sessions and whether those take place privately with just the mediator, or jointly so that all participants and the mediator sit together. The Mediator can of course provide direction and the participants are free to break as they wish. In practice the mediating participants will influence the pace of the mediation too.
The Mediation Agreement
The participants control all elements of the eventual settlement agreement; a signed, legally binding (and enforceable) document capturing how the matter(s) in dispute is to be resolved by reference to various assurances, promises, actions, undertakings, and so on. Upon reaching and signing a final agreement, formal proceedings will be discontinued and the parties are free to move forwards.
If a full settlement does not transpire from the participants’ efforts to mediate, the mediation should still be expected to help narrow, dilute or dispense with some aspects of the matter(s) in dispute. In this way mediation will mitigate/ reduce the ongoing cost of any formal proceedings, which will recommence in the event that settlement efforts are not successful.
Duration of the Mediation
A mediation will usually target a conclusion within the span of half a day to a day, depending on circumstances and complexity. Online Dispute Resolution has proven very effective in providing parties with greater flexibility in the timings during the mediation. Nowadays, most matters benefit from a short preliminary (online) meeting with the mediator prior to the mediation.