FAQ

The Mediation Act 2017 defines mediation as: “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.”

The mediator is a neutral and impartial third party, who helps people come together to discuss their issues and to reach an agreement where possible.

As mediation is confidential and voluntary, this gives people the opportunity to listen to each other and to speak to each other in a safe environment.

Mediation is a very cost-effective method of dispute resolution. The reality is that mediation costs less and happens more quickly.

Costs are based on the needs of each individual case.

• Hourly rate
• Half-day rate
• Daily rate
• Set number of sessions

During initial consultation, the mediator will advise as to the best option to suit each client.  

There may be a charge on preparatory work as well as additional outlays such as hiring a venue and travel costs and VAT.

The cost of drawing up a Mediated Agreement will depend on the length and complexity of each agreement, but this will be discussed with each client before any Agreement is drawn up.  

Payments are usually made in advance or immediately before or after each meeting.

Mediation is a flexible process and typically, once the mediator is contacted, can begin quickly.

The duration of mediation depends on the parties and the complexity of the issue.

Typically, the process – from beginning to end – will take place over a few weeks, however some disputes can be resolved in one or two sessions.

The more complex the issues, the longer it may take, While mediation is not intended to be a long, drawn-out process, its primary purpose is to facilitate an opportunity for dispute resolution and parties may need some time to come to agreement.

The mediator is a neutral, non-judgemental third party, who does not provide any legal, financial, or other advice.

It goes to the crux of mediation that the mediator remains impartial to properly assist all sides involved in the dispute.

There is nothing to stop parties from getting external professional advice from a solicitor or financial advisor at any stage prior or during mediation.

In short, Yes. Mediation can be used at any stage prior to or during a litigation process.

It is becoming increasingly common for judges hearing cases to recommend mediation to resolve some if not all the issues that bring them before the court.

Mediation is not the same as arbitration.

Mediation allows the parties affected by the dispute the opportunity to reach their own solution.

In arbitration, the decision is made by the arbitrator who hears both sides and makes a judgement based on what transpires during arbitration.

A Mediation Agreement or a Mediated Agreement is the written reflection of what was agreed by the parties during mediation.

The Mediation Agreement sets out any terms or conditions that the parties agree to abide by following mediation.

The contents of the Mediation Agreement are confidential between the parties and can only be disclosed to external parties by their express agreement.

The mediator will not disclose what is set out in the agreement to anyone without the express permission of the parties.

Section 11 of the Mediation Act 2017 refers to the Enforceability of Mediation Settlements and states:

(1)  The parties shall determine –

(a)  If, and when, a mediation settlement has been reached between them and

(b)  Whether the mediation settlement is to be enforceable between them

(c)  Notwithstanding subsection (1) …., a mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by them.

Therefore, mediation agreements can be legally binding where parties wish them to be and this must be expressly stated in the Mediation Agreement.

Equally importantly, where parties do not wish the Mediation Agreement to be legally binding, this too must be expressly stated in the Mediation Agreement.

Where mediation agreements are not legally binding, it is the fact that it the parties themselves who decided the terms and conditions of the agreement, thereby making it far more likely that the agreement will be adhered to.

In addition, it is common to have clauses written into the Mediation Agreement as to what happens where the terms are not adhered to.

Arrangements are often reciprocal – A will do ABC and X will do XYZ and therefore each side has something to lose by not adhering to the terms.

The Mediation process can be re-instigated to deal with problems if they arise.

In reality, many agreements now take a legally binding format and a court can therefore help ensure people stick to them. If an agreement breaks down or becomes unworkable, parties can return to mediation or use other forms of dispute resolution including legal action.

Some Mediation Agreements will become part of a legal process and that process will deal with anyone who refuses to adhere to them.

In most mediations, one mediator will act for the benefit of both parties.

There are circumstances, for example where there are multiple parties or the mediation is very complex, where two mediators will work together or co-mediate.