Mediation is a highly effective and highly flexible way to settle disputes.
mediation-1st’s Model Procedure provides the framework within which the mediator and the parties can determine how best to conduct each mediation.
1. The parties and the mediator
The parties may choose their own mediator from mediation-1st’s panel.
If the parties cannot agree the choice of mediator, mediation-1st will propose the mediator that it considers to be most appropriate based on the complexity of the issues, the subject matter of the dispute, the amount involved and the location of the mediation.
2. Preparing for the mediation
The parties shall supply the mediator with contact details (including email addresses) for themselves, the other party to the dispute, and any legal advisors.
The mediator will prepare and draft a mediation agreement. This shall be agreed by the parties prior to the mediation. The mediation agreement will be signed by the parties and the mediator before or at the start of the mediation.
The venue shall be agreed between the parties and (if it is outside England and Wales) with the mediator. The parties may (subject to availability) use mediation-1st’s premises at no additional cost. The venue shall comprise at a minimum two rooms that cannot be overheard or overlooked, preferably with flip charts in each, and access to refreshments. The mediator shall not charge travel costs and expenses unless expressly indicated.
The parties may submit a bundle of documents to the mediator to read in advance of the mediation. Where possible, this should be agreed between the parties. Unless agreed otherwise with the mediator, the bundle should be submitted to the mediator by the Friday before the mediation, and should be limited to one lever arch folder (for a full day’s mediation) or one hundred pages (for time limited mediations). The mediator may direct the submission of Case Summaries or Position Statements which, if directed, shall be submitted at the same time. The mediator shall read all documents so submitted before the mediation.
The start time shall be as agreed between the parties or in default of agreement determined by the mediator.
3. The mediation
The mediation will be attended by the parties, their legal representatives (if they have any) and the mediator. A party may be accompanied by a friend, non-legal advisor or family member.
The parties shall send to the mediation negotiators who have authority to settle the dispute.
At the mediation the mediator will attempt to agree with the parties what procedure best suits the dispute in question. The mediation may be conducted entirely in “private session” (i.e. meetings with the mediator and each party separately – often referred to as caucusing); it may take place almost entirely in joint session (where the mediator meets with all of the parties together) or it could involve any combination of the two. In default of agreement the mediator shall determine the procedure.
The mediator will explore with the parties what the issues are and what they want to achieve and help the parties to identify possible solutions. If the parties reach agreement it will normally be recorded in writing and signed by the parties. Once signed, the agreement shall (unless expressly agreed to the contrary) be binding.
Mediation is a private process. The terms as to confidentiality on which the mediation is conducted shall be those set out in the mediation agreement.
The parties shall be free to agree the level of confidentiality applicable to any settlement.
Mediation is a voluntary process. Any party shall have the right to withdraw from the mediation at any time. The mediator shall also have the right to terminate the mediation, or to adjourn it.
Unless otherwise agreed, each party shall bear the mediator’s fees equally and also bear its own costs and expenses incurred in preparation for and attendance at the mediation.