Tips for mediation
This page gives some general tips on preparing for mediation. It is aimed at mediation in civil non-family disputes. These might be contract disputes between NfP agencies and government departments, for example, or disputes between individuals and providers of goods and services.
Family mediation is different, and so is neighbour mediation. Also, a number of mediation schemes such as the Disability Conciliation Service, or Special Educational Needs mediation, have their own specific procedures. For more detailed information on different types of mediation, click on the list on the right.
Many of these tips will still be helpful when preparing for any kind of mediation.
What are you going to mediate?
Who will act as mediator?
How much will the mediation cost?
Where will the mediation take place?
What information will be exchanged in advance?
Before the mediation.
Who will negotiate?
What process will be used on the day of the mediation?
What is the status of a mediated agreement?
Is the mediation confidential?
What are you going to mediate?
Before you make a final decision to mediate, it is important to sort out what you are going to mediate about.
- You need to decide for yourself what are the most important issues that you want to resolve. Then you need to check whether the other side has a similar list, and whether the lists have points in common.
- You need to decide on your bottom line – how far are you prepared to negotiate on these issues? Again you need to check this out with the other side as well.
- You need to think about what outcomes you would like to achieve at the end of the mediation. Then you need to discuss with the other party what outcomes are possible.
- You need to decide whether mediation is likely to be worthwhile in the light of the answers to these questions.
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Who will act as mediator?
You need to agree two things with the other party: who will act as the mediator, and who will set up and organise the mediation. You may have a particular person in mind, who has experience in a particular type of dispute. Or you may have simply decided that you would like to mediate, but have no idea how to find the right individual. Some mediation services will suggest an appropriate mediator and deal with all the administration as well. Some will not. You need to find this out in plenty of time.
There are a number of things to think about:
- Are you going to propose a mediator or a mediation provider? Or has the other side already made their own suggestion? How will you choose? How might this affect attitudes to the mediator’s neutrality?
- Who will deal with the administration? This includes arranging dates and a venue, fielding queries about the process, making arrangements with the mediator, dealing with fees and exchanging pre-mediation information (see below).
- What sort of background knowledge and experience do you want the mediator to have? For example, does s/he need a to be a qualified lawyer as well as a mediator? Does s/he need to have experience of this specific type of dispute?
- Has the mediator completed a mediation training course provided by a recognised mediation trainer?
- How much practical mediation experience should the mediator have? There are a large number of “qualified” or “accredited” mediators who have completed a training course, but have little or no experience of actually conducting mediations.
- What other kinds of cases has the mediator handled, and were the parties satisfied? You can ask for references.
- Is the mediator impartial – in other words, are you confident that there is no conflict of interest and that the mediator has no interest in a particular outcome?
- What approach does the mediator use? Do you want a mediator who will simply referee your negotiations, or one who is prepared to offer suggestions and ideas for settlement?
There is no single national quality assurance standard for mediators or mediation providers, so you will need to check that the mediator and/or mediation provider you select has quality standards, a code of practice, a complaints procedure, and appropriate levels of professional indemnity insurance. For more information have a look at the Choosing a mediation provider page on this site.
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How much will the mediation cost?
Find out in advance how much the mediation will cost. Mediation can be very expensive, and may depend on the value of the dispute or the length of time the mediation takes.
- Find out how the mediation fee is calculated. Is it worked out on an hourly or daily basis, or is it a flat fee? Do you pay more for a high-value dispute? You should also check if the fee quoted is per party, or per mediation, and what the charges include. Will you have to pay extra for the cost of the venue? Will there be VAT on top?
- Will you have to provide or pay for refreshments? The mediation may last a whole day!
- In commercial mediation the parties are often accompanied by a legal adviser but this is not always necessary. Do you want a legal adviser to attend? If so, how much will this cost you? You should be aiming for a good balance – it probably won’t be a good idea if one side has legal representation and the other does not.
- After a court hearing, it is usual for the losing side to pay the winning side’s legal costs. In mediation, it is usual for each side to pay their own costs. But of course you can always agree something different between you at the mediation. Make sure you discuss this with your legal adviser and with the mediator.
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Where will the mediation take place?
Mediation is a flexible process, and it can take place pretty much anywhere. But you need to think about a few important factors.
- Will the mediator book premises, or will you or the other party have to arrange (and pay for) premises as well? Premises will usually need to include a mediation room and two separate rooms for each of the parties to talk to their own advisers in private. If the mediation takes place at your own premises or the other party’s premises (to reduce costs), will you have enough rooms? And will this affect the impartiality of the mediation?
- Is the venue accessible for all parties?
- Are there any particular needs that you have in order to participate in mediation – do you need an interpreter, an induction loop, additional breaks? Make sure you tell the mediator in advance.
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What information will be exchanged in advance?
It is best to keep the amount of written evidence you bring along to the mediation to a minimum. It is not a forum for deciding facts in dispute, or for proving who is right and who is wrong. However, it can be useful to agree in advance on the issues to be discussed, and to exchange a basic case summary so everyone is clear about the agenda.
- What information needs to be exchanged in advance of the mediation?
- Who needs a copy of the information?
- How much should the mediator be told in advance? The mediator should avoid holding separate in-depth conversations with each party before the mediation begins, but it can be useful for him/her to have a brief introductory meeting or telephone call with each beforehand.
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Before the mediation
You will probably be asked to sign a mediation agreement before the mediation takes place. This will set out any terms and conditions, explain the nature of mediation, and ask you to sign up to a confidentiality clause. Check whether you are committed to paying the mediation fee and associated costs even if the mediation does not go ahead – for example, if you settle before the mediation.
When you are preparing for the mediation meeting itself, it will be helpful to do two things:
- On the one hand, think about what you want to get out of the meeting, and what you’d like to come away with at the end of it. You might find it helpful to prepare a brief opening statement.
- On the other hand, prepare to be open minded about what you want to achieve. It is not a weakness to change your position if you have heard new information or alternative views.
There is no need to bring reams of evidence, but bring all the information you might need to refer to, so that you are in a position to resolve the matter at the mediation without having to come back another time.
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Who will negotiate?
There should be no surprises on the day about who is attending; this should be agreed and confirmed with all parties beforehand.
- Will you be attending yourself? Are you in a position to agree to any proposals made during the mediation?
- Do you need anyone with you? A supporter? A legal adviser?
- Who will the other party send to take part in the mediation? If they represent an organisation, they need to be senior enough to agree to any proposed outcomes on the day, and to ensure that they will be complied with.
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What process will be used on the day of the mediation?
Mediation in civil and commercial disputes usually combines some elements of both shuttle mediation and face-to-face mediation. In shuttle mediation each party remains in a separate room with their legal adviser (if they have one), and the mediator moves between the rooms with communications, proposals and suggestions. In face-to-face mediation all the parties get together at a round table meeting to discuss the issues in dispute.
- Will there be separate rooms for private discussion?
- Will there be a face-to-face meeting at some stage? When?
- How long will the mediation last?
- If an agreement is not reached within the time allowed, will another mediation appointment be made?
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What is the status of a mediated agreement?
Mediated agreements can be written or verbal. But it is important to remember that it is not the job of the mediator to enforce the agreement afterwards. Therefore you should check that the terms are accurate and specific to minimise the possibility of misunderstandings arising later about who agreed to do what.
- What will happen if an agreement is made? Will it be put in writing on the mediation day? Will you need to sign something at the mediation appointment, or will you have time for consultation, reflection and consideration before signing?
- If you do make an agreement on the day, what happens if either party changes their mind afterwards?
- Is the mediation agreement enforceable? How?
- What will you do if the other party doesn’t do what they have promised?
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Is the mediation confidential?
One of the basic principles of mediation is that what is discussed is confidential to the parties. When you sign a mediation agreement, this is one of the things you will sign up to. This is usually taken to mean that anything that is said during the mediation is not passed on to others without the permission of both parties. If you don’t reach an agreement and the case ends up in court, neither side can quote what was said in mediation as evidence of an admission of liability or an offer.
However, you should be aware that in a recent court case the judge made it clear that this confidentiality is not absolute, and that the court can, in certain circumstances, ask for evidence from the parties to the mediation to establish a specific legal point. In another recent court decision (Farm Assist Ltd (in liquidation) v The Secretary of State for the Environment, Food and Rural Affairs), the judge upheld a witness summons against a mediator, in spite of a clause in the parties' mediation agreement prohibiting them from calling the medaitor as a witness. In that case – which was about whether or not the mediation settlement was enforceable, with Farm Assist alleging it was agreed under duress – it was disclosure by the mediator, not by a party, that was at issue. The judge made it clear that such a clause can be overridden if it is in the interests of justice to do so.
Confidentiality does not mean that you are not allowed to make information about a mediation public under any circumstances. If there is a legitimate public interest in the outcome of a particular dispute, or if one side feels strongly that the mediated agreement should be in the public domain, then this can be discussed as part of the mediation itself. If both sides agree, there is no reason why the result cannot be published. Similarly, the mediation agreement can be attached to a court order, if that would help either party feel more confident about making sure that the agreement is put into practice. Like anything agreed in mediation, both sides need to consent to this.
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November 2009
