Questions about Mediation

Do I have to go to mediation?

Mediation is a totally voluntary process unless you are directed to consider it by a judge in respect of Family Mediation, or Small Claims Court cases, for example. Other types of court actions can be ‘stayed’ to allow consideration of and actual mediation. If mediation doesn’t resolve the issues, participants are free, or in some cases obligated, to return to the court.

Mediation relies on the participants to work towards a resolution of the issues in the conflict. If you are not willing to do this it is unlikely that you will reach an agreement or that any agreement will be sustainable. However, if you agree to mediation, the chances are that you will find any agreement more to your liking than other forms of dispute resolution because you will have had a significant input into the process of agreeing the outcomes. It must however be stated that mediation does not always resolve a dispute.

Out of Conflict has helped parties achieve full resolution of issues in 85% of cases.

So what if I decide not to have mediation?

The situation you are in remains unchanged. You may seek, or return to, other ways of resolving the dispute such as arbitration, unions, (which are often supportive of mediation) tribunals and the courts. In these alternatives the solution may well be imposed on you regardless of what you think or have contributed to the process. You will be in what is called a ‘win-lose’ situation, rather than a ‘win-win’ outcome of most mediations. It may well cost you more in time, emotional energy and money.

Is mediation a climb-down?

Not at all. It requires more courage to be actively involved and take ownership of the process and outcomes than it does to let a third party handle it for you. In a workplace scenario, management and colleagues should be respectful of this- the courts are.

Equally, if all or some aspects of the dispute remain unresolved after the mediation, you should be in no worse a position than before the mediation started. The contents of the mediation discussions must not be given to anyone to be used in other attempts to resolve matters — in other words the process is privileged. You are entitled to mention the fact that you have tried mediation, and that some or all of the matters were not resolved.

In Family mediation, the Court will have to ratify any Memorandum of Understanding.

Do I have to meet the other party face to face?

Only if you and the other participants agree and feel safe to do so. If not, a‘shuttle’ mediation takes place where the mediator(s) convey(s) messages between the parties. In practice there may be limits as to how long this process can support the mediation but it is perfectly possible to obtain outcomes that are agreeable to those concerned. Shuttle mediation is often the norm for civil or commercial mediation and at some family mediations.

Separate meetings with each party usually precede joint meetings.

Mediation has ground rules which are designed to ensure a safe and non-intimidating environment and whilst the atmosphere of joint meetings may well be tense (at least to start with), the outcomes of joint meetings are usually positive. This is especially important where you and the other party have to engage with each other regularly, for example in the home, community, or in the workplace. Mediators are trained to manage high levels of emotion.

Can I bring another person along to support me?

This is a popular question and an understandable one. Hopefully, and partly as a result of the answer to the previous question and of the separate meeting with each party, you will build up enough confidence in the process for you to feel safe without having a supporter. However, a supporter or advocate may attend; this ‘other person’ may not necessarily be allowed to contribute on your behalf - mediation is in this way unlike formal hearings, and encourages you to be in control of the process.In some mediations, legal representatives may attend and be consulted, though it is important to emphasise that the outcomes must be what you want/are the best possible, and not what your legal representative thinks you should have.

If you have a disability and require reasonable adjustments to be made you should explain this clearly early on in your discussions with the mediator; for example, have you a learning disability or do you require a signer competent in BSL?

Are children or other family members allowed to attend?

Possibly, in some circumstances. This depends on the context, the nature of the issues, the capacity of the child or young person to engage and understand them. In an educational dispute it may be appropriate. Likewise, in issues involving a young offender. In divorce cases, it is imperative that the needs and interests of children are uppermost and appropriate arrangements will be made to hear the voice of a child/the children.

How long does the process take?

Each case is different, so it is difficult to predict. Initial meetings with each party may take an hour or more but prolonged separate party meetings can be counter-productive. In some commercial or civil cases, separate meetings are the norm after an initial joint session. This is part of a mediator’s skill in agreeing when to stop or to take a break.

Sometimes initial meetings can shortened- by phone calls or other appropriate communication which always precede mediation. Sometimes what looks like a protracted dispute may be resolved relatively quickly, and other cases may reveal more than was apparent at first sight and take longer than expected to reach an outcome.

The mediator will discuss the nature of the sessions with you and, hopefully, your employer (if relevant) will agree to allow whatever time the process takes. Evening meetings are a possibility. Fast-track mediation aims to complete during one working day.

Where does the mediation take place?

In a room or rooms or office agreeable to the parties. This is usually at a quiet, neutral venue.In certain circumstances mediation may be conducted entirely 'remotely' by email, phone or video-conference. The cost for the use of the venue, if there is a charge, will be borne by you, your employer or the sponsor for the mediation, or equally between parties. This will be explained beforehand when the Agreement to Mediate is sent out. The setting is usually fairly informal. Fees and expenses are expected to be cleared by Out of Conflict’s bank or, exceptionally, be paid at the latest by the commencement of a mediation meeting.

Is an agreement enforceable in law?

Frequently though not always. Agreements are a matter for the parties. The contents of an agreement are confidential and unless it is essential to the success of an agreement, the employer or referring agencies will not necessarily be party to the details, and only so if parties to the agreement agree to details being disclosed. They may however need to know whether some or all of the issues have been resolved. Mediation is a voluntary process and the outcomes rely on the goodwill of those involved to sustain them.

However, some agreements may be legally binding, depending on the context. In these cases a failure to uphold the agreed outcomes will usually be a Breach of Contract.

What happens if the agreement reached breaks down?

You may request further mediation or pursue other means of resolving the outstanding issues. It may also be possible to bring a claim against the alleged defaulter for Breach of Contract. Where relevant, Proceedings may be lodged for court action to commence in relation to the original dispute.

If you have other questions which are not answered above, or elsewhere on this website, please raise them when contacting Out of Conflict.