Answers to your questions
This page tells you everything you need to know about mediation in a commercial case. The information given below is non-contractual in that it does not bind The Mediator to act in a particular way. It is in the essence of mediation that procedures are flexible.
- The Mediator’s role
- Where does my solicitor come into this?
- Cost of the mediation
- Administration of the mediation
- The mediation - preparation
- The mediation - conduct
- Money and court
- Unfair tactics
- Remind me . . .
The Mediator’s role
The Mediator’s role is to assist the parties in reaching their own agreement. He does not act as a judge, or as an adviser. Andrew Taylor offers a constructive, helpful approach. He will see that each side has a full opportunity to put her / his case and help the parties agree a settlement that satisfies both of them.
A conflict situation tends to bring out the less attractive features of the personalities of the parties. In a conflict situation, people are not thinking of settlement but of winning. The opponent is often seen as obstinate and unreasonable and as having failed to understand the law or his own position. It is part of The Mediator’s job to bring the parties round to see each other’s view point and to find a way to satisfy conflicting aims for a solution. To this end, The Mediator relies on experience and personal skills. There is no magic bullet and no way to be certain.
Sometimes a solution is not reached. If that happens, the parties have at least understood the position taken by the other and have an opportunity to think over the mediation and take professional advice. Settlements are often agreed shortly after a mediation, even if the parties seem to be far apart when it is first concluded.
The Mediator has been in professional law practice for 20 years, specialising in company and commercial law, then in personal injury and clinical negligence. However, for mediation work, his best qualification is wide business experience, both within and outside of the legal profession.
If the parties so require, The Mediator will obtain a neutral opinion from an agreed barrister. This may be a helpful way to determine issues of law. The cost will depend on complexity but is likely to be in the order of £1,000 - £2,000. At least four weeks should be allowed for this process.
The Mediator is absolutely impartial. He has no connection or arrangement with any relevant person or organisation. He will take a mediation for a party for whom he has previously acted as a mediator, but not if the party was previously a law client.
There are two aspects of confidentiality. First, within the mediation, The Mediator will not disclose the contents of any confidential communication to him to the other party. A party’s knowledge of the other party’s case will therefore be limited to documents, emails and other communications sent with a view to settlement. Second, of course the Mediator will not disclose any information whatever to any third party. Here is The Mediator’s privacy policy. Immediately after your mediation The Mediator will destroy your papers in hard and soft copy.
Mediation is a new “profession”. Most mediators of commercial matters are solicitors or other professionals. (This is not necessarily the case with personal and employment disputes). Handling dispute parties requires inter-personal skills which cannot easily be taught in a course. Nonetheless, several commercial organisations offer “training” of one sort or another. If you look on the websites of mediation training organisations, they usually also offer mediation services, emphasising the importance of . . .guess what . . . their training. Recommended mediators are . . . guess who . . . their trainers.
Andrew Taylor has not “been on a course”. He follows the Europa Code of Conduct, has 20 years’ experience as a practising solicitor and a very wide business experience.
Andrew Taylor will travel to most places in the World, subject to detailed agreement.
The Mediator reserves the right to decline an instruction to mediate without giving reasons.
Where does my solicitor come into this?
There used to be two sorts of solicitor - those who know all about mediation and those who do not want to know. It is a fact of life that a solicitor cannot mediate for her / his own clients. It follows that a client case mediated may be a client case closed. However, since 1999, the courts encourage mediation, so most solicitors accept that it may be in your best interest to try it. More recently still the Europa Directive on Mediation has given another div push forward for mediation to be used more widely.
Many solicitors are among the divest supporters of mediation, but if yours is doubtful, do please ask him to ring Andrew Taylor for whatever information he seeks.
The English legal system is adversarial. Many cases are settled by negotiation, but usually only after the issue of legal proceedings when a solicitor is confident of the strength of your case. If a solicitor encouraged you to settle at an early stage, he would be susceptible to a claim by you for failing to get a better deal. Solicitors are trained to litigate, not negotiate.
The Mediator has no objection to the presence of your solicitor provided you tell your dispute party (through The Mediator) at least a week before the mediation hearing, so that they can also arrange for a solicitor if they wish to do so. Your solicitor may advise you in the course of the hearing.
No. A solicitor has an over-riding duty to her / his client and no duty at all to a fair and just conclusion. Indeed, a solicitor may be failing in her / his professional duty if he / she adopts any but a “win / lose” approach.
Cost of the mediation
Sorry, no. So far as costs can be estimated in advance, The Mediator asks you to pay in advance. Any extra items such as additional time charges will be billed either “as you go” or after the event, at The Mediator’s choice.
Mediation is not about “winning”, but about coming to an agreement acceptable to both sides. It is usual for each side to pay half the costs of the mediation.
A party may cancel a mediation at any time without giving a reason. If that happens, he should of course tell The Mediator and the other side at the earliest possible moment. The Mediator will refund the balance of cash after deduction of a fee for his own time spent to date and any payments made or contracted to third parties. It is not possible to specify how much that might be.
Administration of the mediation
The Mediator will discuss only whether your case is appropriate for mediation (confidentially) and later, in connection with arrangements. In order to preserve total impartiality and trust, he will not advise on or listen to any aspect of your case.
The mediation is governed by the mediation agreement. You can see a copy here.
The Mediator’s office will plan, obtain your approval and deal with all arrangements. You will be consulted on the timetable, on the venue and on any other aspects you particularly draw to the attention of The Mediator.
The Mediator will suggest a suitable venue. It must be acceptable to both parties. The venue will be a room of adequate size for the comfort of those present, together with ante rooms for private meetings between the mediator and each side. Refreshments, ventilation and toilet facilities will be available.
Not necessarily. You would be wise not to rely on it.
The Mediator will correspond by email, for preference, or telephone. Documents will be accepted by post, or in soft copy.
The mediation - preparation
As people approach the end time, they tend to become more prepared to come to a deal. Accordingly, some mediations which could be settled in half a day are listed for a full day. On the other hand a mediation involving more than two parties will certainly take longer. It is sometimes useful to agree a firm “stop and go home” time at the start of the day, and allow time for final details and drawing an agreement.The Mediator will allocate either a half day or a full day, as you wish, but will always allow for flexibility in his own time.
It depends on the role of each. There is no objection to a “team” or two or three provided one person is in charge and that one person speaks at the mediation hearing. Any other people may provide personal “evidence” or experience and may advise the person representing their team. They may not intervene or “make points” other than by way of advice and when The Mediator permits.
See page on documents and witnesses.
Yes, but see our information on documents and witnesses.
No! The mediation process is less formal than a court proceeding, but it is still just as important that cases are presented logically and lucidly. Each side has to be able to understand the case and opinions of the other. A satisfactory settlement cannot result if the parties do not understand each other's position. Time spent on preparation is time well spent. However, it is an important part of The Mediator’s job to make sure the differences between the parties are fully aired and understood, by both the parties!
The mediation - conduct
There are no hard and fast rules but typically, The Mediator will deal with introductions and exchange of information, if any. The parties will then move to their “own rooms” where they can speak confidentially to the Mediator from time to time during the day. One party might use the “common” room as his own, as this reduces the cost of room hire.The Mediator will then shuttle between the two parties, passing on information and discussing ideas and proposals. As the parties may require, The Mediator will call them together from time to time to discuss either some aspect of the dispute or the whole area.Finally, The Mediator will assist the parties in drawing an agreement which reflects their wishes.
Make clear your own arguments, your position, your reasons. Assess his viewpoint and make sure you know what is most dear to him. Show him why he may be wrong or that his view will not win in court. Be prepared to compromise most on the points most dear to him.
The Mediator will help you to explore the differences between you. When you thoroughly understand the other’s reasoning it is likely that you will be less far apart on ways to agree a settlement.
The Mediator will try to bring you both to a “one text” wish list by writing down all the interests of each of you, and working on all items as long as they are relevant. In this way there can be the maximum amount of “trade” in interests.
If the mediation does not produce an acceptable outcome, or you or the other side simply wants to think it over before concluding, then The Mediator will arrange an adjournment if you wish. A new date will be fixed for further discussion.
Please see the full explanation.
If The Mediator feels that the behaviour of any person is disruptive or prejudicial to the fair conduct of the mediation, he will warn that person once. If that or other disruptive or prejudicial behaviour continues, The Mediator will terminate the proceedings. If that happens, no refund on money is due to either party.
The parties may make what notes they wish. The Mediator will not record nor make notes of the proceedings, but is free to make personal notes to assist him in the mediation process.
It is up to the parties to decide whether or not any agreement is to be binding. The Mediator divly recommends that every effort is made to conclude an agreement, and set it down in writing, but if the parties prefer a joint document they can take away and think about, they may take that route.
Money and court
You can certainly use papers produced for some reason other than the mediation. You will be unable to use notes and papers produced in the course of the mediation. Any document created with a view to settlement may ruled as “privileged” from disclosure in court. Furthermore, the Europa Directive makes clear that the proceedings in a mediation are not to be disclosed in court. The Mediator will oppose any application to court that he should personally give evidence.
These islands have the finest legal system in the World. Nonetheless, you need a deep pocket to litigate. All litigation carries a high risk of failure. Mediation is a far more satisfactory solution.
The general rule is that the loser pays the winners legal costs. The main problem is that costs are horrendous. Lawyers are among the highest earners in the economy. A top barrister may charge £5,000 a day. Even in the County Court, it is easy to knock up a bill of £20,000.
It is very likely that you will not be able to negotiate as high a sum in mediation as you would obtain in successful litigation. But your risks are far lower. If you want to bet your house and pension on a £200,000 win, by all means do so. But you may prefer to obtain less, through mediation.
Of course, but it is essential that the person involved
should have authority throughout, to deal with all the issues which may arise. The Mediator and the other side are entitled to know that they are dealing with the decision maker.
Unfair tactics
Every case is different. Do not be swayed by well-meaning friends or relatives who tell you about a “similar” case they read about in the papers. Do remember the old adage about a bird in the hand being worth two in the bush.
It does occasionally happen that if a judge directs a mediation, one party is inclined to treat the whole procedure cynically. However, the dispute has to be settled at some time and in some way and when the cynical party sees the benefits of talking it is more than likely that he will become enthusiastic about trying to settle.
The Mediator will make sure there is a level playing field as far as possible. Inevitably the other side will have a different perception of events from yours. That is not to say they are lying. People accept mediation in order to achieve a “cards on the table” settlement.
The Mediator will encourage the parties to set down the main terms of their agreement in writing and sign it. That agreement could be “heads of terms” or it could be binding, depending on what both sides agree. If there is no agreement, then of course both sides are free to take whatever steps are available to them.
Remind me what I get out of it if things go well.
- A settlement you are happy with, usually legally binding
- A quick settlement
- A low cost settlement
- A confidential settlement
- Minimum stress
- Peace of mind