As part of the stages of the litigation process, the parties are now required to consider Mediation.
This is where a Mediator, being qualified in this role, and being a neutral party assists the disputing parties in resolving conflict through the use of specialized communication and negotiation techniques.
Each party as a rule of thumb contributes to half of the cost of the Mediator’s fees. The meeting usually takes place on neutral grounds, or it can take place on site or for reasons of practicality at one of the parties’ offices if there is no objection to this. The actual meeting with the parties and legal representation for the parties and the Mediator is a “without prejudice meeting”. This means that the parties cannot refer to offers made or what was said at the meeting if the dispute does not resolve and the case proceeds to trial. However, I always recommend that if we prepare a witness statement as part of the process that we mark this “without prejudice subject to mediation” this means that Counsel for the other side cannot refer to this statement at a later stage of the proceedings (if the matter does not settle at the Mediation). This is a precautionary measure as events may well have moved on and you may wish to expand on the points stated in the without prejudice statement for trial. I also advise clients that despite the rule that nothing said can be referred to if the matter does not settle you cannot “unknow” something and therefore you should check with your legal representative before making any disclosure.
On the day of the Mediation the parties generally will have their own room and then there is a central room if the parties are willing to state their position. At the outset the parties may open with a Position Statement to state where they see their position at that point in time. The Mediator will go between the parties and put forward any proposals and relay any counter proposals. You are not limited to your pleaded case so you can think outside the box in relation to offers being made.
I recommend that as parties to a Mediation that you should always consider your best position in terms of settlement, middle ground and also draw a line in the sand as to where you are not prepared to go beyond, so that you have a clear framework as to your negotiated settlement position in advance of the meeting.
Whilst parties are required to consider Mediation as part of the process of litigation, there is no requirement that you must settle on any terms, but it is a positive way of looking to an accepted solution for both sides to end the conflict and to wrap up proceedings on terms that give finality to both sides on terms that are acceptable to both sides. If you would like any further information about the litigation process or Mediation please email me firstname.lastname@example.org or phone me on 01306 88 44 32 and I would be pleased to assist you.
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