Mediation
We are trained to deal with conflict and engage our resolution techniques, working closely with our clients to identify their underlying interests and explore creative solutions with an independent mediator.
We are able to prepare our clients for Mediation.
We are with you every step of the way.
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Patricia White is able to offer Mediation if you are a party in a dispute. For more information click here.
Government Guidance
The Government has set out guidance for Civil Mediation here. They recommend mediation before issuing a claim which can be sourced here.
Employment Tribunals encourage, although do not make mandatory Judicial Mediation here.
Mediation is  described as "a flexible  and confidential process used  to settle a dispute between two or more people, businesses or other organisations.
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It involves appointing  a mediator, who is an independent and impartial third person,  to help the parties talk through the issues, negotiate,  and come to a mutually agreeable solution.
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You can mediate before taking legal action or while legal action is ongoing."
How can we help?
We work with clients before taking legal action and we represent clients with ongoing legal action in the Courts and Tribunals. We have represented clients in civil and employment mediation scenarios.
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We are not third party mediators. We do however, often introduce our clients to third party mediators, particularly in complex cases where the legal costs are likely to be substantial. Our best advice to every client, is in any event, always to explore settlement, it is even more so relevant to cases where each party will have hefty legal fees, if they proceed to a final trial.
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The Courts and Tribunals encourage parties to explore settlement and mediation options here. In fact, it is rather remiss, for either party in a dispute to not have an open mind to exploring settlement options; the Courts and Tribunals take a dim view, and can take into account a blanket refusal to mediate as unreasonable conduct. Although this does not arise in Employment Tribunals per se, it is very relevant in Civil court claims.
The Mediation Process
Generally, applied to any mediation process, the parties will put together their evidence as though they were going to trial. Depending upon what stage the mediation process is agreed to take place, witness evidence and all documents etc are likely to have been put together. However, if the evidence has been gathered but no witness evidence has been exchanged, once there is an agreed bundle of documents prepared, each party will provide a position statement.
In a Civil case, unless the parties are unable to jointly agree to a suitable mediator the Court would appoint one who is suitable for the type of dispute. In the case of an Employment Tribunal this will be an appointed Employment Judge who has not necessarily had anything to do with the case.
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Once the parties are agreed on the joint bundle and have completed their confidential mediation/position statement all of this will be provided to the appointed Mediator. The position statements are not shared with the other party.
A neutral venue will be found where there are facilities for the parties to come together at the start of the mediation and there will also be facilities for each party to be in their own space with their representatives, when they discuss their position openly with the mediator.
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The Mediator will introduce the proceedings, which are informal. Even where an Employment Judge deals with the Mediation, it is still an informal process, where the parties can relax, as far as possible to focus on settling their case. There is always, naturally, ambiguity in any dispute, however, we have always been pleasantly surprised by how, each party conducts themselves respectfully, because, even whilst there may be this inherent dislike for the other party, ultimately, each one has succumbed to try to sort out the issues.
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We advise clients before embarking upon exploring settlement through an alternative to Court or Tribunal, that they need to approach the process with an open mind to them compromising, as painful or awkward as it may be. Many clients have said "isn't it a sign of weakness though to offer to settle?" - our response is absolutely not. Either party will have a top and bottom line which they will not go beyond, and that has to be identified at an early stage, which assists the process of discussions around the table.
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The way in which mediation is effective is that the independent mediator goes between the parties; they listen, take note and then go back to the other to discuss their position. The mediator only relays what they are told to say by each party, even though they become privy to much information. It can take a while for the parties to warm up to the mediation process, however, once the point is reached where they both fully get their respective positions, achieving settlement, can actually be rather swift as the day progresses. In some cases, we have seen an offer accepted at the final minute. We have also seen the most reluctant of clients and opponents come to mutual settlement terms.
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Mediation
What happens next?
If the parties have managed to agree to settle. There will be a settlement agreement prepared containing the terms of agreement which is then signed by both parties.
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The settlement agreement is not shared with the Court or Tribunal.
In terms of an Employment Tribunal, ACAS would be contacted to draw up a COT3 settlement agreement for the parties to sign and declare a legally binding agreement.
In a Civil claim a document called a Tomlin Order is drafted by the parties, which confirms to the Court that the case has been settled and this provides security for the parties to apply to the Court if either party reneges on the agreement.
If of course, the parties have been unable to settle on the day of the mediation, this does not rule out any potential future settlement without a trial. We have seen many claims settle as a result of the parties having gone through the process of mediation, because the mindset of the parties changes in alignment more with a desire to settle a case, than face a gruelling trial. The work which is involved in preparing for the mediation does, as we find, serve as a prelude to the reality of the preparation required for a trial, and often parties have become absorbed in the litigation so much that they lose track of the importance of other spheres of their life which is being impacted upon by the litigation.