Why should mediation work where negotiation has failed?
Mediation brings the parties and, where appropriate, their advisers together. A mediator will endeavour to help the parties to view each other as collaborators in a problem-solving exercise and can help to introduce objectivity, realism and understanding of the broader picture, including the position of the other side. Discussions with a mediator are private, often one to one with the parties and/or their advisers. The mediator can absorb some of the frustrations and help to build a bridge towards better communication. He or she can test perceptions and understandings and help parties to develop options, without commitment or fear of appearing weak. Often, the result is much more creative than parties would have contemplated.
Is mediation binding?
Not until the parties have agreed and, if they wish, documented a resolution. Until then, anything said or done does not bind anyone and is confidential. If the parties reach agreement, they will usually sign a resolution agreement, which is an enforceable contract like any other agreement.
Does the suggestion of mediation to another party display negotiating weakness?
No. It is simply a common sense way of saying to the other party, "we’ve looked at this; let’s talk about the issues and see if we can resolve the dispute in a way that meets our respective needs and avoids the delay, expense and aggravation associated with more adversarial, costly or traditional methods".
How can parties be persuaded to participate in mediation?
Not everyone will immediately agree to participate in mediation. They may need more information about how the process works and whether it meets their needs. Emotions are often highly charged. If asked to do so, Core will contact another party in your dispute, suggest mediation and provide the necessary information. Sometimes, merely waiting a few days or weeks can make a difference and parties may be willing to discuss the options more openly and positively. Founding letters can also be useful.
What about inserting a mediation clause into a contract?
Many advisers and parties to contracts now consider doing this and such clauses are increasingly in use as an indication of commitment to first trying to reach a negotiated outcome if disputes arise. Click here to see our suggested clause and here for another one on our blog.
How much does mediation cost?
Core provides detailed and specific information about our services and their cost in advance of any expenditure being committed. We will provide you with guidance on whether your dispute is appropriate for mediation. There is no charge for initial advice unless agreed. Fees for mediation are clear, specific and will be agreed in advance on a daily or hourly basis (most mediations are completed in one day).
Is Legal Aid available for mediation?
Yes – the Scottish Legal Aid Board guidelines can be found here.
Where will the mediation be held and how soon can it be arranged?
Generally the mediation will be held in an agreed, neutral venue (such as a hotel or business centre) unless the parties agree otherwise. Mediations can be arranged within a few days, depending on parties’ preparedness and availability.
Who will attend the mediation?
Generally, the parties and/or key decision-makers will attend. Many participants involve a legal or other adviser, although this is not always necessary. Mediation often allows parties and their lawyers to get together and overcome fragmented negotiations by bringing the principals to the table. Often, it will be important to have others at the mediation, such as a family member, an employee, an official, an expert or finance or HR manager. The important thing is to have the people present who can help to move matters forward and to make decisions in the mediation.
What is the success rate for mediation?
From minor commercial disputes to workplace difficulties to multi-million pound claims, the overall success rate is reported as being better than 80%. Even if the matter does not resolve completely, usually issues are narrowed and people have a better understanding of where others are coming from. This in itself can assist in managing risk and reducing cost going forward.