Civil & Commercial mediation is a voluntary, confidential process where a neutral mediator helps parties reach a mutually acceptable resolution, avoiding or ending legal proceedings without prejudice.
Frequently Asked Questions
Mediation is essentially an assisted negotiation. It is a voluntary and confidential process provided by a neutral and impartial third party (the mediator). The mediator works with the parties and their advisers to help them find an acceptable solution to the dispute and thereby avoid, or bring an end to, legal proceedings. Mediation is a “without prejudice process”, which means that nothing that is discussed or offered in mediation can be referred to or relied on during legal proceedings.
No, parties to a dispute can pause court proceedings and try mediation. If mediation is successful, the court would be notified of the agreement reached and it would become enforceable if one of the parties were to breach the terms. If mediation is not successful, the legal proceedings can resume where they left off.
Mediators are trained professionals, often (but not always) lawyers, who act neutrally to assist in the resolution of disputes.
A mediator has no power to impose any particular approach or solution. The mediator does not give legal advice or make any judgments. S/he works confidentially with each party and usually, but not invariably, with the parties in joint session to explore areas where the parties’ underlying interests may overlap and where movement towards resolution might occur.
The mediation typically takes place at the offices of one of the solicitors’ firms involved, or sometimes in counsel’s (barrister’s) chambers. If parties do not have legal representation, the mediation would usually take place in a neutral location. Mediations can also be carried out remotely via Zoom or Teams.
Where parties have legal representation, mediation is normally proposed by one party’s lawyer and if the opponent agrees to mediate then the mediation is usually arranged between lawyers, or sometimes the parties themselves. Sometimes a date is agreed first and then mediators contacted to see who is available, but often a list of names (three is usually sufficient) is put forward by one set of solicitors and the other side choose their preferred mediator from that list. The mediator or their booking clerk is then contacted and a date and fee agreed.
Mediations are normally booked for a half day or a day but may be shorter for small claims.
The parties and usually their solicitors will attend. Sometimes counsel (barristers) and/or experts and/or other advisers will be present. If parties do not have legal representation, they may bring non-legal supporters. All present sign a confidentiality agreement.
The mediator has a first private meeting with each party and their representatives (if present) to run through the process, to ensure that confidentiality and “without prejudice” is understood and to answer any questions. Discussions which take place in private session with any party remain entirely confidential and the mediator does not reveal anything about those discussions to the other side unless specifically authorised to do so.
The mediator may then have further private sessions or organise a joint meeting at which the parties and/or their representatives will be invited and encouraged to speak.
There typically follows a series of further private meetings, and possibly further joint meetings, whether of all attendees or of particular groups (such as lawyers only or experts only). The mediator is likely to test each party’s case to some extent in these meetings.
Possible offers or solutions start to emerge and are negotiated, either by the mediator shuttling between rooms or face to face by the lawyers present or the parties.
Once agreement has been reached, it will be reduced to writing by the lawyers (or the parties themselves) and signed.
There is no hard and fast evidence as to what proportion of cases which go to mediation settle on the day but commercial mediators and published statistics tend to agree that around 75% settle on the day itself. In cases where no agreement is reached, settlement nonetheless often follows within a week or two as there is much to build on.
Mediators vary in their charges depending on their background and expertise and the nature, value and complexity of the dispute. Some charge by the hour and others on a scale relating to the amount in dispute and the length of the mediation. Some offer fixed fee mediations for small claims. All mediators charge the same for each party, and fees are payable by both parties before the mediation proceeds.
Many quote fee scales publicly on their websites. For others, information has to be requested from the mediator directly, or their clerks or administrators. The Mediator’s fee for each party is commonly between £1,000 – £2,000 plus VAT for a 1-day mediation but may be more or less than this.
