Mediation tips and how tos : Part 1
In this first part of the series of mediation hints and tips we look at the first frequently asked questions about mediation:
- What do mediators do?
- Is it a sign of weakness to suggest mediation?
- Can the other side refuse to mediate?
- Does it work?
Mediators are neutral independents. They take no side. They express no view and make no finding. Their skill is getting the parties to “level” with each other about their positions. Each side talks to the mediator in strict confidence; the mediator builds a complete picture from these discussions of where the parties are at, and what is stopping them from concluding the dispute so that they can start to unravel the issues and find a solution. No one is forced to disclose anything that they do not want to nor make any offers that they feel are unwarranted. The whole process is entirely without prejudice to the relative positions of the parties.
No – far from it. You acknowledge that direct negotiation has broken down or there is an impasse and suggest a way to move forward rather than let litigation continue its course. It is your solution and you are taking the initiative in a sensible and constructive way.
Yes they may do so. The process is wholly voluntary. But the Courts now encourage mediation. The Government is encouraging the Courts to steer the parties to mediation and judges have considerable powers in costs to condemn parties that refuse to do so (see Rolf v De Guerin  EWCA Civ 78). So they refuse mediation at their peril.
The answer is an unequivocal yes. Roughly 80% of the cases that come to mediation settle on the day or shortly after as the parties continue their dialogue. That is 80% of the cases that were once believed to be resistant to settlement which is an impressive statistic.