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Mediation Procedure

  • Mediation is a flexible process conducted confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution. Any contemplated or existing litigation or arbitration in relation to the dispute may be started or continued despite the mediation, unless the parties agree or a Court orders otherwise. If settlement terms are not agreed through mediation, the parties can revert to litigation or arbitration.

    • involves a highly trained and experienced neutral third party to manage the process and facilitate negotiations;

    • is far quicker and cheaper than litigation or arbitration;

    • is without prejudice and confidential;

    • involves parties and representatives with sufficient authority to settle;

    • is flexible, enabling the process to be designed and managed by the mediator to suit the parties, in consultation with them;

    • puts the parties in control of the process and its outcomes (unlike litigation/arbitration);

    • enables the parties to devise creative solutions which are not possible in an adjudicative process such as litigation or arbitration, and which may benefit all the parties, particularly if there is the possibility of a continuing relationship;

    • can be used in both domestic and cross-border disputes, two-party and multi-party disputes, and whether litigation or arbitration has been commenced;

    • has a very high settlement rate.

  • Referral of a dispute to mediation may be as a result of:

    • voluntary referral by all parties;

    • referral by one party who asks EWLS to secure the involvement of other parties into a mediation;

    • responding to a Pre-action Protocol, Court Rules, a Court Order or a recommendation by a judge before trial or appeal;

    • Dispute Resolution clause in a commercial or government contract requiring the use of mediation as a step in the parties’ agreed dispute resolution process;

    • the provisions for use of mediation within an industry or public sector policy framework. Parties referring a case to EWLS are encouraged to include a copy of any appropriate document or agreement as per above with the referral.

  • The parties may choose their own mediator directly or from a panel of mediators, or may ask the panel to recommend mediators from whom they can choose one to appoint as the mediator for a dispute. In some circumstances there may be a contractual or court requirement for the parties to request a particular panel to nominate and appoint a mediator or where the parties fail to agree on a choice of mediator. The panel will only nominate or appoint a mediator who, in its view, possesses the relevant skills and experience to mediate the dispute for the parties effectively, and who will comply with the Code of Conduct for Third Party Neutrals (‘the Code’). Any nominated mediator and all other parties to the mediation will be required to confirm immediately if there is any matter which might prevent the nominated mediator from complying with the Code in relation to the mediation of the dispute, such as a conflict of interest. The relevant panel or the mediator will then notify all the parties of any such matter immediately it is disclosed to them. If required by any of the parties or the Court, or under the published terms of the dispute resolution scheme, the panel will appoint a mediator to be used in relation to a dispute, subject always to that mediator not being prevented from complying with the Code in relation to the mediation of that dispute.

  • As part of developing the field and its professionalism, the parties may be asked to approve the appointment of an observer mediator to attend a mediation at no cost to the parties, provided that the observer mediator also appropriately complies with the Code in respect of the mediation. The identity of any observer mediator proposed to attend the mediation will be made known in advance of the mediation to the parties, who are free to object to any such nomination or decline any such appointment. All observers will be accredited mediators and will have signed confidentiality agreements.

  • In appropriate cases, the mediator may recommend, or the parties agree, the use of co- mediators or the appointment of a neutral expert to advise the mediator on technical matters. If co mediators are chosen by the parties, all references to the mediator in a document are taken to indicate the plural. It is recommended however, that documents related to the process be adapted to refer to the mediator in the plural and that both mediators be signatories to the Mediation Agreement.

    The circumstances in which a co- mediator may be appropriate are:

    • The number of parties or number of attendees within a party is such that it would be of benefit to have co-mediators

    • Where a specific technical expertise is required.

    • The varying nationalities and cultural backgrounds of the parties. This is separate to the potential need for a translator.

    • Personal preference of the parties.

  • The panel or mediator, when agreed or appointed, will assist in making the necessary arrangements for the mediation as required or agreed by the parties or under the terms of any scheme, including:

    • preparing the agreement for mediation, incorporating any agreed amendments and issuing it for execution by the parties;

    • compiling names and roles of attendees for the circulation of a participants’ form before the mediation takes place;

    • facilitating agreement as to the date, start time, venue arrangements (costs to be met by parties) when necessary and/or use of video conferencing technology;

    • facilitating exchange of case summaries and document bundles between the parties and the mediator when requested;

    • setting up any pre-mediation meetings agreed by the parties and the mediator if requested. Meetings may be online, telephone, in-person or hybrid, as the case requires.

  • The parties will:

    • agree the appointment of the mediator;

    • agree with EWLS the date, start time and venue (including any use of video conferencing for the mediation);

    • execute the mediation agreement;

    • pay the fees and expenses as agreed under the Terms and Conditions of business (including the cost of the mediation venue where necessary);

    • each prepare and exchange a case summary for the mediation in respect of their approach to the dispute at the mediation and endeavour to agree with all other parties what documents are needed for the mediation;

    • send to the mediator directly and/or by electronic copy (as agreed), or to the location indicated by CEDR, a copy of their case summary and a copy of the bundle of documents at the earliest convenience, usually no less than one week before the date set for the mediation, making clear:

    • whether case summaries have or have not yet been exchanged;

    • whether or not and when EWLS or the mediator is to effect exchange; and

    • whether all or any part of any case summary or documentation is intended to be confidential for the mediator only. (Late submission of documents might call into question that party’s good faith involvement in the mediation process, and have detrimental effects on the prospects of success of any mediation;)

    • notify the mediator of the names and roles of all those attending the mediation on their behalf,

    • ensure that a lead negotiator with full authority to settle the dispute attends the mediation to sign any potential settlement agreement;

    • alternatively notify the mediator, and (unless very good reason exists to the contrary) the other parties of any limitation on authority to settle, for instance lack of legal capacity, or the need for ministerial approval, court approval, or board ratification, in which case the lead negotiator will need to have power to recommend acceptance of any settlement.

    (Late disclosure of limited authority to settle can call into question that party’s good faith involvement in the mediation process, and have detrimental effects on the prospects of success of any mediation.

  • The mediator will:

    • ensure the code of conduct is complied with in respect of the mediation of the dispute, reporting any conflict of interest or other relevant matter, if any, immediately it emerges to the panel and (subject to any question of confidentiality or privilege) the parties;

    • attend any pre-mediation meetings on terms and agenda agreed by the parties, or proposed by the mediator;

    • read each case summary and document bundle submitted in advance of the mediation by the parties;

    • make contact with a representative of each of the parties before the mediation to assist in preparation for the mediation and discuss issues arising.

  • Documentation intended to be treated as confidential by the mediator or the panel (such as a counsel’s opinion, an undisclosed expert report, a draft proof of evidence or a confidential briefing for the mediator) must be clearly marked as such, and will not be circulated further without express authority. One of the advantages of mediation is that its success is not dependent on exhaustive disclosure of documents. Bundles can usually be relatively limited in size, containing only key documents, and case summaries can be quite brief. Bundles can be jointly prepared by the parties.

    The parties can agree for a simultaneous exchange of case summaries if it is appropriate to do so. While documents brought into existence for the purpose of the mediation, such as case summaries, are clearly privileged from later production in other proceedings, the fact that a document which is otherwise disclosable in proceedings is produced for the first time during the mediation does not normally confer privileged status on it. The parties must take legal advice on such matters if they arise. Documents should be digital where possible.

  • The mediation agreement provides the essential legal basis for the mediation. Its signatories (the parties to the dispute, the mediator and the panel) all agree by signing it that the mediation is to be conducted in a manner which is consistent with both this mediation procedure and the Code of Conduct for Third Party Neutrals.

    A mediation agreement will be sent to the parties as part of the preparation process for the mediation, and any proposed amendments can then be discussed and inserted if agreed by all. The mediation agreement will normally be signed in advance by electronic signature or at the beginning of the mediation day on behalf of each of the parties, the panel and the mediator. Upon appointment of the mediator by the parties (or by the panel) any pre-mediation contact between the parties, the panel staff and mediator, will observe the mediation agreement’s terms as to confidentiality, regardless of whether the agreement has already been signed or not.

  • Mediation can take place in person, online or as a hybrid process. The arrangements described below apply to in-person mediations but broadly similar provisions apply for online mediation, such as arrangements for all parties to have (virtual) private rooms and prohibition on recording the mediation.

    For in-person mediations it is normal for there to be at least three rooms so that each party has a private room for confidential consultations on their own and with the mediator during the mediation. There should also be a further room large enough for all parties to meet with the mediator jointly. The mediator will chair and take responsibility for determining the procedure at the mediation, in consultation with the parties. The procedure is likely to comprise of a series of private and joint meetings including:

    • preliminary meetings with each of the parties when they arrive at the venue;

    • a joint meeting of all attending the mediation, at which each of the parties will normally be invited to make an oral presentation;

    • a mix of further private meetings and joint meetings (which may involve all or some of each party’s team), as proposed by the mediator and agreed by the parties.

    Professional advisers, particularly lawyers, can and usually do attend the mediation. Such advisers play an important role in the exchange of information and opinion on fact, evidence and law; in supporting their clients (particularly individuals) in the negotiations; in advising clients on the implications of settlement; and in drawing up the settlement agreement and any consent order.

    No verbatim recording or transcript should be made of the mediation by the parties or the mediator in any form, but participants can make their own private notes which will not be disclosable to anyone else, including in any subsequent litigation or arbitration.

  • Mediations can last beyond a normal working day and it is important that the key people attending for each of the parties remain present or, at worst, available by telephone or video conference for so long as the mediation continues. Any time constraints should be reported to the panel or the mediator as soon as known, as any unexpected departure can be detrimental to the progress of the mediation and perceived as disrespectful by other parties.

    Where any part of the mediation takes place using video conferencing software, the Host shall mean any and all of the following: the person allocated the role of “Host”, “Organiser” or similar term by the video conferencing platform used; the person who is the lead participant; or the person in control of the video conferencing platform.

  • The agreement provides that what happens at the mediation is to be treated as confidential by the parties, the mediator and the panel, including the terms of settlement, unless otherwise agreed by the parties in writing. However, the fact that the mediation is to take place or has taken place is not normally made confidential. If it is desired to make the fact that the mediation is taking place confidential also, the agreement can be amended. The panel is also bound to keep confidential information which the mediator may share with the panel for the purposes of case reports or queries regarding professional conduct.

    Apart from where the parties agree in writing to consent to disclosure of what would normally be confidential, there may be rare circumstances in which the confidentiality of the mediation process cannot be preserved, such as where:

    • the mediator or any party or their representative is required by law to make disclosure;

    • the mediator reasonably considers that there is a serious risk of significant harm to the life or safety of any person if the information in question is not disclosed; or

    • the mediator reasonably considers that there is a serious risk of being personally subject to criminal proceedings unless the information in question is disclosed. Such questions might arise in relation to duties under the Proceeds of Crime Act 2002 or related legislation or under any other legislation. Legal representatives (who may themselves be under a comparable duty of disclosure in their own capacity) must take full responsibility for advising their clients of the implications of disclosure in relation to any such matters at a mediation.

  • The mediation may end in a number of ways:

    • by agreement by the parties and the mediator

    • by settlement of the dispute in whole or part, when all agreed matters must be written down and signed by the parties to be binding;

    • by an ‘in principle settlement’ of the dispute with an agreement to draft binding terms after the mediation day;

    • by the mediator advising the parties that a settlement, for the time being, at least, cannot be reached;

    • by one or more parties leaving the mediation before settlement is achieved;

    • by an agreed adjournment for such time and on such terms as the parties and the mediator agree;

    • by withdrawal of the mediator in accordance with the mandatory and optional circumstances set out in the Code;

    • by production of a document of summary or recommendations from a mediator, if requested by all parties and agreed by the mediator.

    The mediator will facilitate the drawing up of any settlement agreement, though the drafting is normally done by the lawyers representing each of the parties.

    Where proceedings have not been started in respect of the dispute, the settlement agreement will (if so intended and drafted) usually be a legally binding agreement with its terms enforceable via the Courts. Where proceedings have been issued in relation to the dispute, it is normal for a Consent Order to be agreed either at or after the mediation and later lodged with the relevant tribunal to end the proceedings on the terms agreed. Parties should agree who will be responsible for lodging the Consent Order.

    Where the mediation day does not end in complete settlement, the mediator may continue to work with the parties thereafter to see whether further progress might be possible. Many disputes which do not settle at the mediation day can settle later, usually as a result of what occurred or was learned at the mediation. Here the mediator agrees to stay in contact with the parties after a mediation, the provisions of the mediation agreement continue to apply to those communications with and/or including the mediator.

    In the event that a settlement is not reached, the mediator if requested and if agreed by each of the parties and the mediator, may produce a non-binding opinion or recommendation in an effort to take the matter forward. EWLS endeavours to make contact with all parties after every mediation to obtain their feedback on both the process itself and, in particular, the mediator. Any feedback obtained regarding the mediator will be given in full to the mediator as part of the mediator’s continuing learning and development and quality assurance.

  • EWLS Ltd and Civil Mediation Council.

    MEDIATION COMPLAINTS PROCEDURE

    1. Our complaints policy

    2. We are committed to providing a high-quality dispute resolution / mediation service to all our clients. We are committed to high levels of service and good reputation. However, we also recognise that there may be times when things may not always steer as hoped or planned. If you feel less than satisfied with any of our ADR/Mediation work and would like to raise a complaint, then we need you to tell us about it. This will help us to improve our standards and rectify your concerns.

    3. Our complaints procedure

    4. If you have a complaint, please feel free to call the mediator whom the complaint may be directed at or dealt with your case. We feel this informal discussion and direct approach over the telephone is often the best way to deal with any concerns/complaints.

    5. In the unlikely event that you remain dissatisfied after discussing the matter, or if you prefer to lodge your complaint in writing, please write to your mediator directly with full details. We recommend that you include your name, reference number (if applicable), the name of the party / parties of the mediation in question and the date of mediation that has taken place. It would also be helpful if you could provide a reachable telephone number (even if you have already provided one) to ensure we have an updated record of it should we need to contact you urgently for any reason.

    6. If you remain unhappy after receiving the mediator’s response, you may be able to refer your complaint to the Civil Mediation Council (CMC). Please see paragraph 14 below.

    7. What will happen next?

    8. We will send you a letter acknowledging your complaint and asking you to confirm or explain the details set out. We will also let you know the name of the person who will be dealing with your complaint. You can expect to receive our acknowledgement letter within five working days of us receiving your complaint.

    9. We will record your complaint in our Complaints Register. We will do this within seven days of receiving your complaint.

    10. All complaints will be investigated and responded to within 21 working days of receipt. The procedure may on occasions require further time, in which case the complainant will be notified of this in writing.

    11. In the case of Registered Mediation Providers, the investigation will be carried out by somebody other than the mediator that the complaint relates to.

    12. We will then start to investigate your complaint. This will normally involve the following steps:

    • The mediator who acted for you will reply to your complaint within five days. Pursuant to clause 4 above, the investigation may be carried out by somebody other than the mediator.

    • S/he will examine your complaint and the information in your complaint file and reply accordingly.

    • S/he will write to you confirming the final position on your complaint and explain the reasons for doing so.

    13. Registered mediators have a feedback system which invites, receives, assesses and reviews, all comments by the parties and their lawyers and representatives in respect of mediations.

    14. If you are still not satisfied with your response, you may refer your complaint to the Secretariat of the Civil Mediation Council if you have the necessary grounds to do so. Information about a referral to the CMC can be found HERE.

    15. All complaints must be in writing and addressed to the CMC Secretariat at complaints@civilmediation.org

    16. On receipt of your e-mail the Secretariat will send you a complaint form to be completed and returned. Please note time limitations and conditions which are available on https://civilmediation.org/for-the-public/complaints/

    Civil Mediation Council,
    100 St Paul’s Churchyard, 3rd Floor, London EC4M 8BU

FAQs

Your questions, answered

If you don't see the answer here, please get in touch.

  • For claims up to a value of £100k with no more than two parties, a half or full day (of no more than seven hours) mediation is £450 + VAT per party. This includes an administration fee.

  • For claims with a value of between £100k and £250k with no more than two parties, a full day (of no more than eight hours) mediation is £1,150.00 + VAT per party. This includes an administration fee.

  • Fee for claims with a value of between £250k and £500k, a full day (of no more than eight hours) mediation is £1,300.00 + VAT per party. This includes an administration fee.

  • Claims of over £500k will not normally fall into the fixed fee category. We can organise a bespoke quotation.

  • Mediations are offered on a half or full day rate and depend largely upon the monetary value of the claim. If more than one day is required, it may be possible to offer a reduced fee for the second and subsequent day.

  • The mediation day normally starts at 9.00am and ends at 1.00pm for a half day case or 5.00pm for a full day case. This can be subject to some adjustment to suit the parties, but a half day will be four hours and a full day will be eight hours. If the claim is than £100k, a full day is seven hours.

  • The fee includes up to two hours preparation time for claims of under £100k and four hours preparation time for claims of £100k - £250k. If the volume of papers or complexity justifies an additional preparation fee, we will agree this with you in advance.

  • Room hire is not included for face to face mediations. If one or more of the parties have appointed legal representatives, the mediation will often take place at one of the lawyer’s offices. We can arrange offices and catering (if required) near to the preferred location of the mediation, but this will be at an extra cost, to be included in the quotation.

  • If the parties are legally represented, they will often meet at their lawyer’s offices to join the online meeting. Sometimes, the parties can join their lawyer from a different location and the mediator will provide separate online breakout rooms where the respective parties can discuss issues with their lawyer in private. If one or more of the parties are not legally represented, they can join an online meeting from home or their own offices etc. However, provision should be made for privacy and good communications to ensure suitable engagement with the process. See the separate section on - getting the best from the mediation.

  • The full terms and conditions for a fixed fee mediation will be sent once we have the necessary information to produce the quotation.

  • If the mediation is face to face and is within a reasonable distance of the mediator, the travel costs will be included in the fixed fee. If the parties chose a mediator located at quite a distance from the mediation venue (perhaps because the mediator has a particular specialism not readily available from more local mediators), travel expenses will feature in the quotation. This may include hotel expenses and subsistence if the mediation is set for more than one day.

  • Unless the information is very limited, we ask for sight of papers and any opening position statements no later than seven working days prior to the mediation. This will give the mediator sufficient time to prepare. If papers are served inside the seven days or at the mediation itself, we will do our best to incorporate them. However, we cannot guarantee their inclusion in the process, especially if they are of a substantial volume.

  • If the parties and mediator are available, any extra days can follow immediately after the planned day(s), assuming all parties can make payment for the extra day(s) on account. If not, additional days will simply be fixed for a date convenient to all parties and payment can be made in the meantime.