Isle of Discussion

What is Mediation? The term mediation refers to a circumstance where a neutral third party, i.e. the Mediator, assists parties who are in conflict or a dispute situation to reach an agreement and/or settlement allowing them to resolve their dispute.

In its most basic form, mediation is a period of intensely focused discussion and negotiation carried out under agreed terms detailed in a Mediation Agreement. The mediation agreement clearly details what the parties and the Mediator can and cannot do and expect before, during and after the mediation. 

Mediation has a structure, it has flexibility, a timetable, it is creative, and it has dynamics that “ordinary” negotiation and litigation lacks. It often presents options that, unlike litigation, can help reconcile the parties, maintain relationships or a commercial alliance.

The financial cost of meditation is considerably less than fighting the matter out in court.

The mediation process is voluntary, private, confidential and without prejudice which provides the disputing parties with a safe environment, at an agreed time and place, to explore their options to settlement. The process of mediation is unique in that no two disputes are or will ever be the same.

Mediation humanises the dispute, it focuses on your interests not your issues, focusing on your interests introduces reality and perspective.

Unlike proceeding to court or arbitration, where a judge or arbitrator dictates an outcome that the parties may need to live with, mediation empowers the parties. It gives the parties the opportunity to own and have full control over their dispute. It is you, the parties, that ultimately decide the eventual outcome.

“Experience has shown that parties who negotiated their own settlement agreements felt more empowered and were happier with the outcome than those who, through litigation, had the final decision forced upon them

As mediation is a voluntary, not a statutory process, to date, the courts cannot force mediation upon disputing parties. However, if a party unjustifiably refuses to mediate at the request of another party, the court does have the ability to penalise.

In recent cases, Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd & Anor [2020] EWHC 1050 (Comm) (30 April 2020), DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB) and BXB v Watch Tower and Bible Tract Society of Pennsylvannia & Ors [2020] EWHC 656 (Admin), the court disallowed a substantial part of a successful defendant’s costs as a result of their failure to engage in mediation. These latest decisions clearly demonstrate that the court is now willing to impose cost sanctions on the basis that a party refuses to participate in the Mediation / ADR process.