The Mediation Process

What to expect on the day?

In her mediations, Eve will meet with each Party, in private meetings, at the start of the day. Arrivals can be staggered, to avoid parties meeting unexpectedly;
When the Parties are ready, Eve will usually invite the Parties to meet with the mediator, in a joint meeting. The mediator facilitates the joint meeting so that it is constructive and business like. Often, this is the only time the Parties will meet face to face during the mediation day.
The joint meeting is the opportunity for each Party to impress on the other why they believe they have strong legal or factual arguments. It is a useful opportunity for the Parties to to better understand the other side’s case and re-assess their litigation risk, weighing up the respective arguments and evidence;
The Parties then go back to their private rooms and Eve will shuttle between the rooms, conveying offers and ideas for settlement. The mediator does not advise the Parties – they have their lawyers present to support them – but will work with them to ensure good progress is made, and a steady flow of information and ideas are exchanged;
The mediation process is confidential, so the Parties cannot take anything discussed on the day, outside of the mediation and use it against one another. More importantly, the mediator treats all discussions shared in private meetings as strictly confidential. Eve will never share in one room, what has been discussed in the other room, without a Party asking her to do so, expressly. It is a very safe process.
When the Parties finally reach a deal, the mediator will ensure the Parties or their lawyers draw up a watertight settlement agreement. Once this is signed by both Parties this remains the only formal record of the mediation and has force of contract. The Parties are free to consider any issues which are ancillary to the dispute, in a far wider context than litigation allows, during the mediation meeting.

Costs and Preparation?

It is important to prepare carefully for the mediation, but the exercise is not as formal or expensive as litigation Disclosure. The Parties should bring any documents, records or expert evidence they believe may help on the day, such as valuations, a Final Account or Land Registry plans. These help make informed decisions on the day.
The cost of mediation includes the Parties’ respective legal or other expert costs, present on the day. The Parties usually agree to split the mediator’s costs on a 50/50% basis (unless it is a workplace mediation, paid for by the Employer). Often one of the Party’s lawyers will offer up their offices as venue for the mediation, to save on costs.
Before the mediation will proceed, Eve will speak to the Parties or their representatives. The Parties sign a mediation Agreement before the mediation meeting. Broadly speaking, this confirms both sides willingness to enter into a commercial negotiation, in good faith and in confidence, to try and settle the dispute and resolve any pending litigation.
The mediation Agreement confirms that the process is covered by mediation privilege. That is: nothing said or exchanged during the mediation can be used by one Party against the other, outside the mediation. This ensures the process is a safe one, kept within the control of the Parties.