Mediation Guide

Traditionally, mediations take place at a law firm, barrister’s chambers, or a neutral venue such as a hotel with meeting rooms.  However, as a result of Covid 19 and advances in digital communication, we can now hold remote mediations, by way of Zoom, Teams or other platforms. And even today you can still choose to hold remote mediations, if that is something you’d prefer.

Neither and both! Whichever works best for you, puts you at ease and enables you to be effectively advised by our Solicitors. Sometimes there can be something called a “hybrid” mediation where one of the parties may be at home, and others may be together with their Solicitor in an office.

You and any opposing parties to the dispute (unless you are represented by the same Solicitor) will remain in separate rooms throughout the day, either a physical room or a virtual room. The mediator will shuttle between these “rooms” throughout the day with the aim of narrowing the issues in dispute and ultimately guiding both parties towards a binding settlement which you can both live with.

No, not if you don’t want to. Occasionally, parties will ask to meet, perhaps to try and rebuild relationships at the end of the day and after a settlement is reached, however this is not compulsory. Sometimes there will be a “Solicitors only” meeting between Solicitors, if the mediator believes that would assist in reaching a settlement.

The core mediation hours are usually 9am – 6pm, however they often run into the evening and even into the early hours. We limit the time to a day, as it helps to focus the mind, and keep costs proportionate. If it becomes clear that both you and the other party/parties are too far apart for a settlement to be achievable, the mediation may finish long before 6pm.

We find that around 80-90% of cases which reach mediation settle, however a further 5% tend to settle in the following weeks and 5% end up at a trial.

They can, however in our experience, the use of an independent mediator makes it far more likely that the parties will reach a settlement. Parties, and even their Solicitors can become intransigent, holding a firm opinion about the strengths of their position, which can be difficult to depart from. 

A mediator will objectively consider and communicate to all parties how the claim might play out in court, and the risks they face in going to a trial which can be invaluable in unlocking matters.

If you are an Executor who is not a party to the claim other than in your role as Executor, then you will not usually need to attend, however you will likely still need to take legal advice on your position. This is because you will need to consent to the terms of settlement reached, so would need to be contactable on the day, and able to give instructions to the person representing you. The settlement terms will often require the Executor to actively carry out the terms of settlement, so it is important that you are properly advised throughout the process even if not physically attending.

Whilst technically you can, we strongly recommend that all parties take their own, specialist, legal advice. Having a Litigant in Person at a mediation slows the process down and makes it less likely that a binding settlement will be reached. There is also a danger that you could agree to something which is not in your best interests.

There is no set rule on this. The mediator will guide the parties, sometimes depending on what offers (if any) have been made previously.

No, offers made at a mediation cannot be referred to the Court when a decision is made as to who is responsible for who’s legal costs. However, it is a common tactic for parties to repeat offers made at mediations by way of “without prejudice save as to costs” offers and those would be referred to the Judge when considering costs.

Yes, although anyone attending must sign the Mediation Agreement and agree to keep anything discussed confidential.

Provided a Settlement Agreement is signed by all of the parties to the claim, it is legally binding, and no one can go back on it. Sometimes as parties you may be only able to reach “Heads of Terms” if, for example, one of the parties needs to take specialist tax advice on their position before signing a binding agreement. 

Heads of Terms are not legally binding but show the parties intentions regarding settlement, and this usually results in a binding Settlement being agreed shortly after the mediation.

Usually when both parties have exchanged pre-action correspondence and have enough information/documentation to enable their Solicitors to advise both of you regarding the strengths and weaknesses of your claims. Sometimes this might be after proceedings have been issued and witness statements have been exchanged, other times it might be at a much earlier stage. Each case is different.

Louisa Wardle, Senior Associate at IDR Law