Mediation

• Early Neutral Evaluation
• Expert Determination
• Adjudication
• Arbitration

Mediation can take a multitude of different forms from informal 'without prejudice' meetings with an independent 'facilitator' assisting the parties to resolve their differences, to formal mandatory settlement negotiations presided over by a mediator with the parties employing legal representation, expert advisers etc.

Mediation requires the will of the parties to seek a settlement in order to be successful. Parties entering the mediation forum will be nervous of making concessions that they feel they might otherwise avoid in arbitration or litigation. However, avoiding the cost, time and hassle of arbitration / litigation, plus of course, settling issues in a more agreeable forum has a price tag that makes mediation worthy of consideration for most disputes.

Mediated settlements on contractual disputes are undoubtedly influenced by the legal strengths of the parties' arguments, but such strengths are not the be all and end all of the discussions. Such factors as early settlement, other issues that have arisen, future work, time for completion of obligations, availability and cost of dispute management resources and the like can all be thrown into the ring in search of a 'win-win' settlement solution. Even if the parties do not settle at the first meeting, they will go away with a better perspective on the issues and when communications continue, settlement often occurs without resort to higher dispute procedures.

The courts now generally require as part of a 'Pre-Action Protocol' that the parties meet at least once (having exchanged their respective statements) before a court hearing commences to attempt to settle their differences. The exception to this is if either party can demonstrate the procedure stands no reasonable chance of success. Mediation is a procedure that the courts accept as complying with the protocol. Whilst the Court Procedure Rules (CPR) now incorporate a pre-action protocol to ensure the parties have a reasonably clear understanding of the case and have met to try to resolve their differences, there is often considerable benefit to incorporating an appropriate protocol prior to references to arbitration.