The Mediation Process

The mediation process begins when the parties to a dispute agree to mediate.

The next step will be to identify and appoint a mediator acceptable to each of the parties.  Sometimes one party will take the initiative and propose a list of candidates from which a choice is made.  Alternatively, each party may make proposals.

Once a mediator is selected, there will be various practicalities to consider, such as the venue and the amount of documentation that needs to be supplied in advance to enable the mediator to gain an appreciation of the main issues in the dispute and the positions of the parties.

For some property disputes there are advantages in holding the mediation on-site or at least at a venue nearby from which it is possible to travel to the site if there is a need to inspect particular features in order to understand the details of the dispute or discuss possible solutions.  Such advantages have to be balanced against the need for private space for each party and space for the parties to come together for what are sometimes called plenary sessions, should that be appropriate. Cost is also a consideration.

Usually ahead of the mediation the mediator will circulate the agreement governing the mediation to the parties in draft to allow them the opportunity to consider the content with their legal advisors and raise queries with the mediator in good time.   Everyone intending to attend the mediation – including observers or supporters who do not intend to play an active part – will need to agree to the confidentiality provisions and sign the agreement before the mediation starts.  An example of a mediation agreement may be downloaded from the ‘resources’ section of this website. 

The mediator will usually have a short preliminary meeting with each of the parties or their legal representatives a few days before the mediation in order to make introductions and deal with any pre-mediation issues as well as possibly to make suggestions for the conduct of the mediation on the day.

The mediation day itself is likely to consist of a series of private meetings between the mediator and each of the parties and their advisors in turn.   The mediator may at various stages propose joint meetings chaired by the mediator, either between the respective advisors (for instance if there is a particular technical or legal issue to explore) or meetings all parties (if it appears that there would be a particular benefit in a direct exchange of information and views).

If settlement terms are agreed, they will need to be reduced to writing and signed by the parties to become binding.  The parties and their advisors should give consideration in advance to the practicalities involved in preparing a settlement agreement and executing it.