Mediation is a flexible and confidential form of alternative dispute resolution in which a neutral mediator seeks to explore the terms of a negotiated commercial settlement. It can be far quicker and substantially more cost effective than traditional litigation running through the courts or employment tribunals and is encouraged by the judiciary and adopted in court rules – a failure to engage may be costly.
In advance of the mediation, live or remotely, a mediation agreement will be signed requiring the parties to treat all discussions and documents produced as confidential. The parties will also exchange position papers summarising their positions. The mediator will separately and confidentially speak to the parties or their representatives to understand their commercial goals.
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Usually, the mediator will formally open the mediation with a joint session, attended by all parties and their lawyers, live or remotely, where procedure is explained and the principle of confidentiality reinforced. Each party may make a brief opening statement, although this can be disposed with. After the opening session, the mediator will have private sessions with each party.
Mediation does not always result in a settlement, however, in our experience it has a high success rate. If no settlement is achieved, the mediation may have clarified/narrowed issues in dispute which will assist in a subsequent resolution.
- Frontloading costs involved in the mediation process.
- A fear that mediation will expose a party’s hand or strategy.
- A party could fish for helpful information to support their case.
- Parties who consider that they have a strong case may see it as a waste of time and money.
- It is not suitable where allegations of fraud or other commercially disreputable conduct are alleged.
Generally, the parties share the mediator’s fee and the associated costs of mediation (venue and food) and bear their own legal costs of preparation for and participation at mediation.
- The ability to manage different personalities who may not be the best witnesses at trial.
- Working through deadlock situations by negotiation.
- In cross border disputes mediation can avoid many practical or procedural difficulties.
- Business relationships can be preserved or enhanced.
- Lost opportunity and management time can be saved.
- Mediation can produce outcomes that might not be possible through a trial. There are no “rules” to constrain the outcome.
As experienced accredited mediators, we understand all the mediation routes so whether we’re advising directors, partners or employees, we’re able to assess both parties’ positions with a level of fairness and accuracy. We also have extensive experience of designing and implementing in-house mediation in addition to undertaking the mediations ourselves. Whether proceedings have started or not, mediation is a successful way to resolve disputes at work.
Mediation works best when:
- there is conflict between individuals or within a team
- an employer or employee feels bullied or harassed
- an individual feels discriminated against
- an employee is suffering from stress at work
- poor performance is an issue
- bonus or other contracted terms are in dispute
- there is dissatisfaction over equal pay
Whilst these are examples of the common use of mediation, to discuss your situation, please call Jon Taylor.
A concluded settlement can be embodied in an Order or, for employment disputes a settlement agreement or Acas COT3, so is enforceable. Similarly, some International agreements recognise mediation agreements.
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EMW have been incredibly supportive in guiding Reformis through the transaction, providing excellent advice and direction. Their engagement with Deloitte and overseas counsel was efficient, pragmatic and always professional; a pleasure to work with.
It was an absolute pleasure working with Tracy and her team at EMW, they made it very easy every step of the way. I would recommend them to anyone going through the same process. Thank you Tracy and thank you EMW.
I wholeheartedly recommend EMW to other business owners looking for first class legal advice.
As the acquisition project comes to a close, we now embark on an exciting journey to help grow the eBuyer business across each of the markets it serves, and we will share more around our plans in the coming weeks. The EMW team have been exceptional throughout on this transaction; Nick and his team were understanding of our business and requirements from the start, were responsive and certainly put the hours in to get the deal done. We have built some great relationships across EMW over the last few months and its testament to the culture that Nick and his team has built at the business. We look forward to working with EMW moving forwards.
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