Litigation often proves to be expensive and time consuming for all parties concerned. Under the heading of Alternative Dispute Resolution, mediation is encouraged by the courts as a means of reaching a mutually acceptable conclusion to a dispute.
Objectives of Mediation
Mediation is a formal procedure for the purpose of seeking a negotiated settlement with the assistance of an accredited mediator. It can be used either before court proceedings are issued or, where there are already existing court proceedings, these may be suspended to enable mediation to take place.
Where mediation succeeds without court intervention the mediator will prepare an agreement that is signed by all parties. Where court proceedings were suspended to facilitate mediation any agreement is signed under the form of a tomlin order that is ultimately approved by the court.
What Happens in Mediation?
Both parties firstly must agree to mediation. Once agreed it is the most appropriate way forward the parties must then agree upon a mediator who will conduct the mediation procedure. When deciding upon a mediator both parties must understand a mediator is a neutral facilitator assisting them to reach a negotiated settlement; the mediator is not there to advise on points of law or any other relevant statement of claimed facts.
The mediator receives submissions (document disclosure) from both parties and a venue is agreed where the mediation is to take place.
The mediation starts with an all parties meeting (known as “The joint meeting”) where each side has the opportunity to make a brief, uninterrupted statement of their position. In most cases joint meetings are not held but this will be agreed by both sides. The meeting is then broken up as the parties go to separate rooms where the mediator will attend upon both in turn. Here, the mediator tries to identify common ground and discuss parameters that would form the basis of a settlement as he alternates between the two separate meeting rooms. If at any time the mediator determines it is beneficial to do so all parties may be called back into a joint meeting.
It is important to note that during the separate meetings the mediator will not disclose sensitive information to the other party without obtaining prior sanction and (where applicable) the limitations of that disclosure.
Should settlement terms be agreed the mediator will prepare the mediation agreement (where there has been no court intervention) or a tomlin order (where court proceedings have already been commenced) for all parties to agree and sign. If it is a tomlin order then the solicitors acting shall file this with the court for final approval. Generally, the court proceedings are suspended but, depending on the terms of the tomlin order, there may be grounds for the court proceedings to be dismissed.
What Services can PBC Mediation Service Undertake?
PBC director, Gary Pettit, is an appointment-taking licensed insolvency practitioner with over 26 years of experience. During his career he has never lost an action where court intervention has been required. As a mediator accredited by the Centre of Effective Dispute Resolution (“CEDR”) Gary draws on his successful litigation record when aiding parties negotiate a settlement.