Mediation

This page contains the following information about mediation:
What it is
When it is used
How it works
Cost
Outcomes
Note on time limits and legal advice
 
You can also follow these links for more information to help you decide if mediation is appropriate for a particular dispute, and if so how to make the most of it and what to expect:
Tips for mediation
What is a good mediation?
Choosing a mediation provider
 

FINDING A MEDIATOR
Finding a mediator to help in your dispute is not straightforward. You can follow the links from the list on the right to find out more about mediation in different types of dispute. The page on 'Choosing a mediation provider' will give you an overview of the factors you should think about. Or follow the link on the left to the ADR Directory.

 

What it is
In mediation, an independent third party (the mediator) helps parties with a dispute to try to reach an agreement. The people with the dispute, not the mediator, decide whether they can resolve things, and what the outcome should be.
 
Mediation is more than just negotiation. It has a carefully staged process. You can read more about this under How it works on this page. The mediator is there to help the discussions run smoothly, and to manage this process.
 
All types of mediation have the following in common:

• It is voluntary - you can choose whether to mediate or not
• It is private and confidential - what you talk about in mediation can't normally be used in court later unless you both agree
• You and the other party make the final decision on how to resolve your dispute
• The mediator is impartial - he or she does not take sides or say who is right and who is wrong
• The mediator is independent

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When it is used
Mediation is the most wide-ranging ADR process and is used in many areas of dispute, including:

• business
• consumer goods and services
• divorce and separation
• education - schools, colleges, universities
• discrimination
• housing
• international politics
• medical negligence
• neighbours
• personal injury
• small claims
• hate crimes
• workplace and employment
• young people at risk of homelessness
• youth crime

Mediation can be used in cases involving only two parties and those involving a large number of parties or entire communities.
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How it works
Ideally, mediations take place in a neutral venue - a place that is not associated with one side or the other. Many mediation providers have their own offices where mediations can take place. They can also arrange for mediations to take place in convenient local venues. Provision can also be made for accessible premises and any special needs.
 
Mediation usually takes place at a face-to-face meeting between the parties in dispute. But in some cases the parties stay in separate rooms and the mediator moves from room to room with ideas and responses ('shuttle mediation'). In other cases mediation can take place on the telephone (for example, in Small claims mediation).
 
Mediation meetings have a structure. There are a number of stages, which will include:

• Working out what your issues are - the mediator will start by finding out from both parties what you think are the important issues that need to be sorted out.
• Working out what your options are - there is always more than one solution to a problem. Mediation gives you the freedom to think about a wider variety of options than a court would consider. The mediator will help you to explore all the choices open to you, and to think about what the advantages and disadvantages of each might be, but won't tell you what to do.
• Working out an agreement - the mediator will make sure that you are both clear about what you have agreed, and may put together a document setting it out in writing. If you both agree to it, you can get your solicitors to make it legally binding.

Most mediation meetings are concluded within one day, but it is possible for mediation to take place over several meetings, particularly family mediation.
 
Mediation works in different ways, depending on the nature of the dispute.

• In family mediation anyone applying to court for a divorce is now required to attend a Mediation Information and Assessment Meeting (MIAM) to discuss with a mediator whether mediation would be suitable for them. This meeting can take place together or separately - it's up to you to decide which would feel safest and most comfortable. If the mediation goes ahead you will have a number of mediation sessions, each lasting around 90 minutes, where both parties meet together with the mediator to talk about arrangements for your children, your home and your money. Although it is a good idea to get legal advice from your solicitor before you start mediation, and in between the meetings, lawyers don't usually come along to the mediation sessions.
• In neighbour mediation the mediator will talk to the first person to contact the service, and then get in touch with the other party to discuss with them whether mediation would be suitable. If there are several neighbours involved - as in a dispute about noise on an estate, for example - the mediator will try to contact everyone involved. They will then set up a meeting with all the parties to discuss the problems and concerns which they all have. Lawyers are not usually involved.
• In mediation in commercial and business disputes, the parties and their legal representatives meet together with the mediator. In most cases you will be in one room with your solicitor, and the other party will be in a separate room with their solicitor. The mediator will 'shuttle' between the two rooms, negotiating a solution that both sides will agree to. In some cases the mediator will suggest that everyone should meet face-to-face to hear each other's views in person.
• In what is called civil, non-commercial mediation, the parties are usually together in the same room with the mediator, but they might have one or more private sessions with the mediator, then come back together in the same room. This is the approach often used for disputes over special educational needs, workplace issues and discrimination cases, for example.
• In small claims mediation there is a mediation officer based in every court area in England and Wales. S/he will talk to you on the phone once you have made an application to the small claims court. If you are interested in trying mediation, and the other side agrees, mediation can take place either face-to-face in a room at the court, or through a series of telephone conversations between the mediation officer and both parties.

It is also worth noting that different mediators have different approaches to their role. The main difference is the extent to which the mediator controls what happens. The most common models in the UK are:

• facilitative mediation, in which the mediator does not direct the parties towards any particular settlement. Some facilitative mediators feel it is appropriate to offer suggestions; others do not. Another way to describe this style of mediation is that the mediator is in charge of the process, while the parties are in charge of the content.
• evaluative mediation, in which the mediator makes suggestions as to the likely outcome of the dispute. If you are looking for a mediator to direct you towards a resolution, you would probably be more satisfied with an evaluative approach than a facilitative one.
• rights-based mediation, in which the mediator ensures that any mediated agreement reflects statutory rights and legal entitlements.

It is worth thinking about which style you would find most helpful, and perhaps discussing this with the mediator in advance. For a checklist to help you prepare for mediation, see .
 
Mediation is sometimes used along with other processes - for example, it can be used as a stage before arbitration in med-arb, which begins with mediation and progresses to arbitration if no agreement is reached; see Other ADR Options.
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Cost
The cost of mediation varies.

• Most community mediation - used for resolving disputes between neighbours, for example - is free to the parties. Community mediation services are often funded by a local authority to provide mediation in the local area.
• Family mediation is usually offered at an hourly rate, sometimes on a sliding scale according to the income of the participants. If you are eligible for legal aid, then your mediation costs, and the cost of your legal advice, will be paid from the legal aid fund. You won't have to pay this back.
• Civil and commercial mediation rates tend to be expensive and are usually based on the value of the dispute or claim. For example, fixed-rate mediation is available from providers listed on the government's Civil Mediation Directory (which replaced the National Mediation Helpline in October 2011). This is an online tool that helps you to locate a local mediation provider; all providers listed are accredited by the Civil Mediation Council. Mediations are provided at a fixed, subsidised rate, which starts from £50 + VAT per party for a one-hour session for small claims (of less than £5,000), increasing to £425 + VAT per party for a four-hour session (for claims up to £50,000).
• If you want to use a provider from the Civil Mediation Directory but you don't know the value of the claim, you can give an estimate and describe the dispute, and the provider will tell you what fee applies. Note that some providers might offer a telephone mediation instead of a face-to-face mediation. So you need to think about what kind of mediation you want, and if you prefer a face-to-face mediation then say so.
• When contacting a provider listed in the Civil Mediation Directory, it is important to mention that you located them via this Directory, in order to obtain the fixed-fee rate. Also, check what other charges there are. Although it is called 'fixed fee', you might have to pay the costs of a room hire and administrative charges in addition to the fee.
• If you are eligible for legal aid, your solicitor can claim the cost of mediation from the legal aid fund.
• Some mediations are paid for by one party. For example, in many workplace and employment cases, the costs of mediation are covered by the employer. In mediations involving special educational needs, the local authority or the school usually pasy the costs.
• Mediation of discrimination cases referred by the Equalities and Human Rights Commission is free when handled by the Equalities Mediation Service. You can use that service without a referral from the Commission, but there will be a charge. Sometimes the other side will agree to pay the mediation fees.
• Small claims mediation is provided by a court-based mediation officer, and is free once you have paid your court application fee.

It's worth noting that if you can't afford mediation, and are not eligible for legal aid, you may be able to get free mediation and legal advice through LawWorks. Legal Aid is not available for mediation in Northern Ireland and Scotland except in family disputes.
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Outcomes
There are no set outcomes in mediation. The range of remedies that can be achieved is as wide as you want it to be. You are not restricted to the outcomes which a court could order. You could make an agreement which includes:

• an apology
• an explanation
• a change in behaviour, policy or procedure
• a promise to do or avoid doing something
• an agreement about contact or residence arrangements for children
• an agreement about property or financial arrangements after separation or divorce
• an agreement to return to work, or to resume a course at university
• compensation
• refunds
• replacement of goods

Mediation is a non-binding process. This means that any agreement you make is not automatically legally binding. However, mediation has a good track record when it comes to keeping to agreements. If both parties have agreed an outcome that they think will work, they are more likely to stick to the terms of their agreement. For example, research into court-based small claims mediation schemes in 2006 found that people complied with nearly all the agreements reached through mediation. However, one in five small claims decided by a judge at a hearing needed some kind of enforcement through the court.
 
There are two ways to make a mediation agreement legally binding:

• A signed mediated agreement is a contract, and you can go to court to try to enforce it. The court will have to decide just how much weight to give to the contract, though. Agreements reached through the Equalities Mediation Service are considered legally binding full and final settlements.
• If both parties agree, you can ask the court to turn your mediation agreement into a court order, which can be enforced directly through the court.

If no agreement is reached in mediation, then you can try another ADR method, or take your case to court for a hearing.
 
Mediation is confidential and meetings are 'without prejudice' - in other words, anything said in the mediation cannot later be used in a court or other proceeding.
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Note on time limits and legal advice
In some cases, there is a strict time limit for making an application to a court or a tribunal. This is especially true in employment disputes, for example, where a tribunal application for unfair dismissal must be made within three months. It is therefore very important to get independent legal advice as soon as possible on whether to use mediation, and how to go about it. You don't want to risk missing the court or tribunal deadline. If you think mediation might be helpful, it is always possible to put in a court or tribunal application in plenty of time, and then to try to set up a mediation appointment while you are waiting for a hearing date. Courts have the power to 'stay' or postpone a hearing while ADR is taking place.
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October 2011
 

Key websites

Civil Mediation Directory

Family Mediation Database