Mediation has become a widely used method of resolving disputes in the United Kingdom, particularly in commercial contexts. It offers a structured yet flexible approach, allowing parties to negotiate settlements outside of the courtroom. This blog post outlines the typical mediation procedure in the UK and addresses key questions regarding legal representation and the use of witnesses.
The typical Mediation Process in the UK
Mediation in the UK generally follows a standard procedure, though it can be adapted to suit the needs of the case and the parties involved. The key steps include:
1. Agreement to Mediate
Before mediation can proceed, the disputing parties must agree to participate in the process. Increasingly often this will be stipulated in a contract through a mediation clause or it can be agreed upon after a dispute has arisen or (in light of very recent English Court of Appeal authority) it can be ordered by the Court.
2. Appointment of a Mediator
A neutral mediator is selected by mutual agreement or appointed by a mediation body, such as the Centre for Effective Dispute Resolution (CEDR) or the Civil Mediation Council (CMC).
3. Pre-Mediation Preparations
Parties exchange key documents and may submit position statements outlining their views on the dispute. The mediator will hold preliminary discussions with each party to understand their concerns and expectations and to prepare for the hearing.
4. The Mediation Hearing
The mediation typically begins with an opening session where all parties and the mediator meet together. The mediator then facilitates discussions, encouraging negotiations and exploring possible solutions. Private sessions (caucuses) will also be held with each party separately to discuss confidential matters and to advance the process.
5. Reaching a Settlement
If an agreement is reached, it should be documented in writing and signed by both parties. Most mediation agreements stipulate that any settlement agreement must be in writing and signed by or on behalf of the parties. This is also important for enforcement purposes under the Singapore Mediation Convention.
6. Post-Mediation Follow-Up
If no settlement is reached during the mediation, parties may continue negotiations (generally, with the help of the mediator) or pursue other dispute resolution methods, such as arbitration or litigation.
Are Parties Typically Represented by Lawyers in Commercial Mediation?
In commercial mediation, it is common for parties to be represented by legal counsel. Lawyers play a crucial role in advising their clients, preparing legal documents, and ensuring that any settlement agreements are legally sound. However, unlike litigation, mediation is a party-driven process, meaning that legal representatives take a more supportive rather than adversarial role.
Are Fact and Expert Witnesses Commonly Used in Mediation?
Unlike in court proceedings, fact and expert witnesses are not commonly used in mediation. Mediation is designed to be an informal and flexible process that focuses on negotiation rather than evidence presentation. However, in complex commercial disputes, parties may present expert reports or statements to support their positions. The mediator may consider these documents, but they do not have the same relevance as in a courtroom setting.
Conclusion
Mediation in the UK offers an efficient and effective means of resolving disputes, particularly in the commercial sector. While legal representation is common, the process remains party-centric, emphasising negotiation and collaboration over adversarial tactics. The use of fact and expert witnesses is generally limited, ensuring that mediation remains a streamlined and cost-effective alternative to court proceedings. By understanding the mediation procedure, businesses and individuals can better navigate disputes and achieve amicable resolutions.