Recently, I conducted a Question & Answer session with Ayisha Robertson aimed at explaining; the concepts of mediation, what mediation covers, and which situations it is best suited for.
Watch the full video or read the transcript below.
Interviewer: You often hear about mediation. What exactly is mediation?
Stewart Patterson: Mediation is a means of settling disputes without the stress, uncertainty, anxiety, and expense of going to court. It is a popular form of alternative dispute resolution strongly encouraged by the courts.
Interviewer: How does mediation work?
Stewart Patterson: A mediator is appointed by agreement between the parties to help them resolve their problem. The mediator will establish the exact process, which will be informal and flexible. He will arrange a meeting at which all parties involved in the dispute are present.
Interviewer: What happens at the meeting?
Stewart Patterson: The exact form that the process takes will be up to the mediator. Typically I would get all the parties together in a room to start off with and explain how we are going to approach the problem. I would then ask each of the parties to explain their position quite shortly. We may try to identify the issues involved in the dispute. And then I would invite the parties to retire each of them to their own room. I would then come and see them in confidential discussions moving from one room to the other until we are close to reaching an agreement. I may bring the parties together again at some stage or if there are more than two parties see two or more at a time. The process is entirely flexible.
Interviewer: How does mediation differ from Arbitration?
Stewart Patterson: With an Arbitration the Arbitrator actually decides the dispute. A mediator does not make a decision, he helps the parties to make their own agreement.
Interviewer: How long does a mediation last?
Stewart Patterson: Until the dispute is resolved. It often takes all day and in a complicated dispute can go on well into the evening. There are usually no time constraints.
Interviewer: Who should go to mediation?
Stewart Patterson: Anyone who has a dispute either about to arise or actually in progress can go to mediation?
Interviewer: What sort of disputes can be dealt with by mediation?
Stewart Patterson: Any sort of dispute can be resolved by mediation. This includes disputes over money, building contracts and commercial disagreements, disputes over property, for example boundary disputes, restrictive covenants, landlords and tenants, employment, partnerships – there is really no limit.
Interviewer: Is the mediation limited in scope?
Stewart Patterson: No. With the agreement of the parties, all options are open whether related to the particular dispute or to other aspects of the relationship between the parties
Interviewer: When can the parties go to mediation?
Stewart Patterson: The parties can go to mediation at any stage. This means either before any proceedings begin, after court proceedings have started, even after court proceedings have concluded and judgment given if an appeal is pending.
Interviewer: What makes a good mediator?
Stewart Patterson: A good mediator should be prepared to listen patiently and understand the position of each of the parties. In that way he can immerse himself into the world in which the parties exist and which gave rise to the conflict. Having understood the position of each of the parties, he should be able to explain the point of view of each party to the other. He may encourage or cajole and may bring innovative ideas into the matter himself. It is important to bear in mind that in the end the agreement or compromise reached is that of the parties and is not imposed upon them by the mediator.
Interviewer: Any other attributes?
Stewart Patterson: Yes. He should be a person who never gives up. However entrenched the parties appear to be as the day goes on, there is always the possibility of an agreement – and it usually happens.
Interviewer: How is a mediator chosen?
Stewart Patterson: Preferably by agreement between the parties. Only if you cannot agree upon the mediator do you need to approach on of the principal mediation bodies. These keep a list of mediators from which they can appoint a mediator. If they are called on to do this they will make a charge on top of the mediator’s fee. Such bodies include ADR group, CEDR and the Chartered Institute of Arbitrators.
Interviewer: Who pays for the mediation?
Stewart Patterson: The fees of the mediator are split between the parties. This ensures that the mediator can be seen to be neutral. The mediator’s fee is normally payable in advance of the mediation.
Interviewer: Supposing I decide halfway through that I do not wish to continue with the mediation?
Stewart Patterson: Mediation is voluntary and any party can walk away at any time. On the other hand even though agreement seems impossible, it is usually worthwhile continuing, as with patience obstacles can often be overcome.
Interviewer: What are the advantages of mediation?
Stewart Patterson: The most obvious advantage is the saving of the cost of litigation. A court case can go on for months or even years and often involves the parties spending many thousands of pounds on legal costs as well as court costs. Because it takes so long the parties frequently suffer a great deal in stress and anxiety. Mediation can avoid all that and resolve the dispute much more quickly. It has the added advantage of avoiding the antagonism created by an acrimonious dispute and can enable the parties to continue in a personal or commercial relationship with each other. In addition it is confidential, whereas court proceedings are open to the public.
Interviewer: Do I need to be represented by a solicitor or barrister at a mediation?
Stewart Patterson: No. You can simply turn up to a mediation yourself or bring a friend or adviser. Experience has shown however that mediations are more likely to be successful if both parties have legal representatives. This is so that they can be sure that their case is properly explained. It is also very helpful for you to have legal advice which can be given quite confidentially in your private room as the mediation progresses. Most importantly it is helpful to have someone discuss with you the proposals and suggestions which have been made by the other side and to keep a sense of reality about the proposals which you will make. Above all, you don’t want to feel intimidated if the other side appears to have a support team.
Interviewer: What qualifications do you have is a mediator?
Stewart Patterson: I am accredited to 2 of the major mediation groups in the country CEDR, the Centre for Excellence in Dispute Resolution and ADR Group – Alternative Dispute Resolution. I am also a Fellow of the Chartered Institute of Arbitrators, a third important accrediting body. More to the point, having spent a lifetime practising at the Bar in cases of all kinds, I have mediated in a wide variety of disputes, resulting in agreement between the parties, an agreement which often they never thought they would reach.
Interviewer: When you are appointed as a mediator how do you approach the matter?
Stewart Patterson: I try to speak to both parties in advance, to ensure that they are fully prepared for the mediation, and that they understand the process which is to take place. I also need to ensure that if they are representing anybody else, for example a company, that they have authority to reach a settlement. I also make sure that I have enough information about the dispute so that I can guide the discussions and negotiations. I encourage the parties to be frank and forthright but in the long term sufficiently conciliatory to reach an agreement. I go to some lengths to ensure that the process is informal and that the parties are relaxed. It is important that the parties on all sides should feel that their own views have been understood and taken into account. Fairness is fundamental to the process.
I hope this has given you the information you need, and if you have any further questions then please do get in touch with me. I am easy to contact and will always endeavour to respond quickly. All dealings with me are in the strictest confidence.
This article was originally posted on stewartpattersonbarrister.co.uk