Are There Rules Governing the Mediation Procedure? If Not, What Is the Typical Procedure Before and During the Hearing?
In England, commercial mediation is widely recognised as a flexible and efficient alternative to litigation or arbitration. Unlike adjudicative processes such as court proceedings, mediation is not governed by a rigid set of procedural rules imposed by legislation or a central authority. Instead, the process is largely unregulated, allowing parties to shape the procedure by agreement with the assistance of the mediator. However, while there is no binding code, certain conventions and best practices have become standard in practice, often guided by institutional rules or the mediator’s framework.
Absence of Statutory Rules
There is no single statutory or codified framework governing the practice and procedure of mediation in commercial disputes in England. Mediation remains a voluntary and consensual process, and parties are generally free to:
- Choose the mediator,
- Decide on the format and timetable,
- Determine the scope of issues to be discussed,
- Decide what (if any documentation should be exchanged and put before the mediator, and
- Withdraw from the process at any point.
The Civil Procedure Rules (CPR) in England do encourage the use of Alternative Dispute Resolution (ADR), including mediation. Specifically, CPR Part 1 obliges parties to help the court deal with cases justly and at proportionate cost, which may include employing mediation. However, these are procedural obligations within litigation, not rules that govern mediation itself.
Typical Pre-Mediation Procedure
Despite the lack of formal rules, the pre-mediation process often follows a familiar pattern:
- Selection and Appointment of Mediator
Parties agree on a mediator, sometimes with help from a mediation provider such as the Civil Mediation Council (CMC) or from independent professionals. - Mediation Agreement
After appointment of the mediator, the parties and mediator typically sign a mediation agreement. This contains some important terms including ‘without prejudice’; that the entire process is confidential; and that either party is, at least in theory, free to walk out at any time. I say “in theory“ because in my mediations I tend to point out to the parties that I will use my relatively large bulk to block the exit door if I perceive that there is still any realistic hope of a settlement being achieved! Of course, the possibility to walk out disappears once settlement has been agreed and reduced to writing. - Exchange of Position Papers
Each party usually prepares a written position statement setting out what they want the mediator to know at the outset. These may be exchanged between the parties and shared with the mediator in advance. - Confidential Briefing for the Mediator
Some parties also provide the mediator with a confidential briefing, outlining any underlying issues or settlement dynamics they do not wish to share with the other side. - Preliminary hearing
In advance of the hearing it’s my practice to invite each party and their lawyers to a preliminary meetingto discuss various important issues, including authority to settle.
Typical Procedure During the Mediation
While the procedure can vary based on the mediator’s style or the complexity of the dispute, a typical commercial mediation in England involves:
- Opening Joint Session (Optional)
The mediator may begin with a joint session where all parties are present. This can be used to set the tone, clarify the process, and allow parties to make brief opening remarks. It may surprise the parties to learn that that there is at least some common ground! - Private Sessions (Caucuses)
Most of the mediation takes place in separate private meetings between the mediator and each party. These sessions are used to explore interests, test positions, and exchange settlement proposals via the mediator. - Negotiation and Settlement Discussions
The mediator facilitates discussion, helping parties move from positions to interests and explore possible solutions. Offers may be exchanged through the mediator or directly between the parties. it is important to note that the mediation is not restricted to the claims and counter claims which constitute the agenda in Court. Indeed, one of the beauties of mediation is that left field solutions can be achieved. - Drafting of Settlement Agreement
If agreement is reached, the parties should draw up a written settlement agreement. This will be legally binding and may now be internationally enforceable under the Singapore Mediation Convention.
Use of Institutional Rules
In cases administered by mediation institutions, such as the International Chamber of Commerce (ICC), the mediation may be conducted under a set of institutional rules. These provide additional structure around confidentiality, timing, and appointment of mediators, but still maintain the core flexibility of the process.
Conclusion
While no formal rules govern the mediation procedure in England, there is a well-established practical framework that guides how commercial mediations are conducted. This framework is built around flexibility, party autonomy, and the mediator’s discretion. Pre-mediation preparation, voluntary participation, confidentiality, and structured negotiation through private sessions all form key components of a typical mediation. it is not unusual for parties to start the day sceptical whether, given the history of the particular dispute, a settlement can be found. However, a well structured mediation achieves a momentum of its own and the overwhelming majority of mediations do indeed result in settlement.