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Minehead

22 The Parks, Minehead,
Somerset, TA24 8BT
Minehead Solicitors

Taunton

17 The Crescent, Taunton,
Somerset, TA1 4EB
Taunton Solicitors

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London, WC2A 1AL
London Solicitors

Mediation

Mediation & Alternative Dispute Resolution (ADR)

Mediation is one of the most commonly used forms of ADR. It is a dynamic, voluntary, and confidential alternative for resolving disputes, offering flexibility to all parties involved.

Courts encourage mediation and refusing a request to mediate may weaken your position should your case subsequently be taken before a judge.
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Key contact
See how we can help
you. Contact Sheree-Ann Virgin

Partner

Sheree-Ann is a Partner and heads the Litigation & Dispute Resolution department in our Taunton office. Her practice consists of all types commercial litigation with particular focuses on competition and EU law related litigation, intellectual property litigation and professional negligence claims.

We are experienced in taking a wide range of cases to mediation and negotiating settlements at those mediations or after.

We can advise you on the optimum time to take your case to mediation which will depend on the nature of the case and on factors like whether the issues have been properly defined, what disclosure there has been, limitation issues, etc.

We have undertaken mediations with a wide range of mediators including several of those top mediators listed in the Legal 500 rankings of top Mediators in the UK.

The cases we have taken to mediation range from cases we have dealt with for businesses and individuals across a variety of areas including disputes involving property and intellectual property, disputes between shareholders and partners and disputes alleging breach of contract or professional negligence.

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Frequently Asked Questions

  • What is mediation?

    Mediation is a form of alternative dispute resolution (“ADR”) in which a neutral third party (“the Mediator”) helps parties to work towards a negotiated settlement of their dispute. It is a means of resolving a dispute that is alternative to the litigation process that goes through the Court system, although it is often used after court proceedings are under way. Mediation can be used to attempt to settle most types of disputes ranging in value and complexity.

    The most commonly used form of mediation is facilitative mediation in which the Mediator will work to facilitate an agreement between the parties but the parties, not the Mediator, decide whether to settle and on what terms. The process is usually completely confidential so that all discussions and documents are treated as confidential and ‘without prejudice’. This means that the facts and matters discussed during the mediation and the documents prepared for it cannot be referred to in front of a judge until after the dispute has been formally decided at trial or formally settled. 

    The dispute resolution team at Maitland Walker are experienced in taking a wide range of cases to mediation and negotiating settlements at those mediations or after.  

  • When should parties mediate?

    The optimum time to take a case to mediation will depend on the nature of the case and on factors like whether the issues have been properly defined (in pre-action correspondence, in pleadings, in responses to Requests for Further Information or post pleading correspondence) what disclosure there has been, whether interim orders are necessary, limitation issues, enforcement considerations, etc. Our team advises our clients on the best time to mediate or suggest it to ensure that it has the best chance of achieving success. 

    In large cases the parties are required, in the Directions Questionnaire, to confirm whether they want to stay the proceedings for one month to attempt settlement which might include mediation. 

    After disclosure might also be a good time to mediate as the parties understand the case against them and are in possession of the other party’s documents that support or harm their case (assuming that there has been standard disclosure) and it is still early enough in the proceedings to provide the incentive of cost savings if the mediation is successful since the witness evidence and trial costs will be avoided.  

  • What happens at a mediation?

    The parties will usually have exchanged “position statements” in advance of the mediation setting out what each party regards as the critical issues of fact and law, an estimate of the costs expended to date and estimated going forward and an account of any previous negotiations. 

    The Mediator will usually greet the parties and show each party to its own private room. The mediation is usually formally opened by the Mediator with all parties present and here the Mediator will give an overview of the process, their role and the procedure. Each party usually then has an opportunity to make an opening statement, giving its perspective of the dispute. After this opening, the Mediator will have private discussions with each party to assist in the negotiating process. 

    The negotiations might reach a settlement at the mediation or shortly thereafter. Studies suggest that the success rate of mediation could be as high as 67% of cases settling on the mediation day and 19% settling shortly after the mediation day.

  • What is the role of the Mediator?

    The Mediator’s role is to control the mediation procedure, remain impartial and try to facilitate an agreement between the parties. He or she will at no point impose any decision on the parties although they might play “devil’s advocate” and test the position the parties are taking. 

    The Mediator will act as an intermediary between the parties by using shuttle diplomacy, communicating offers, information and questions between the parties subject to their permission. 

    The parties will usually agree on the appointment of a Mediator. Selection is usually made on the basis of the nature of the dispute and the Mediator’s experience or known approach. A Mediator may have a variety of backgrounds including as a lawyer or other professional, e.g. surveyor, etc. 

  • What are the benefits of mediation?

    There are many potential benefits of mediation most of which result from the role of the Mediator acting as a neutral third party intermediary. Other benefits include: 

    • Costs efficiency compared with the cost of litigating to trial; 
    • Business relationships can be preserved or enhanced by mediation; 
    • The private and confidential nature of the process – public judgments are avoided; 
    • Flexibility of remedies – a remedy might be agreed in a mediation that it would not be possible for a court to order; 

    Even if a mediation does not result in a settlement and the litigation continues it is likely that the parties will have benefited from the mediation process by developing a better understanding of each other’s case and objectives and narrowing some of the issues in dispute.

  • What are the costs of a mediation and what costs consequences follow a refusal to mediate?

    The costs for the Mediator vary greatly depending on the experience and expertise of the mediator, the value of the dispute and the duration of the mediation. It is not usual for a mediation to last longer than a day even in complex cases. 

    If a party rejects the other party’s suggestion to mediate without any consideration of whether mediation is suitable, it is likely that a court would impose costs sanctions on that party. If a suggestion to mediate is considered but rejected and a thorough explanation of the reasons for rejection provided, there is still a risk that a court would impose costs sanctions. It is difficult to predict in advance the court’s likely view on the reasonableness of a refusal to mediate since this decision will only be made at the end of a case after trial so extreme caution must be exercised before rejecting mediation. 

  • Is the mediation confidential?

    Mediation provides a private forum in which the parties can gain a better understanding of each other’s positions and work together to explore options for resolution. During the mediation, the Mediator meets privately with each party to discuss the problem confidentially. This allows each party to be frank with the Mediator and have a realistic look at their case in private, without fear that any weaknesses discussed will be communicated to other parties.

    At Maitland Walker we provide clear and practical advice having taken into account all of the options available to you and risk involved throughout the dispute resolution process. In most cases we encourage clients to consider mediation. 

What are the benefits of mediation?

There are many potential benefits of mediation most of which result from the role of the Mediator acting as a neutral third party intermediary. Other benefits include:
  • Costs efficiency compared with the cost of litigating to trial;
  • Business relationships can be preserved or enhanced by mediation;
  • The private and confidential nature of the process – public judgments are avoided;
  • Flexibility of remedies – a remedy might be agreed in a mediation that it would not be possible for a court to order; and
  • Even if a settlement is not reached, it is likely that the parties will have benefited from the mediation process by developing a better understanding of each other’s case and objectives and narrowing some of the issues in dispute.
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  • I've never conducted a mediation that's not been extremely useful. Either a settlement has been achieved on the day or shortly after or its use has been simply in obtaining an understanding of the issues that are important to your opponent in a way that you cannot otherwise draw out.
    Sheree-Ann Virgin
  • Peace cannot be kept by force; it can only be achieved by understanding
    Albert Einstein
  • Sheree-Ann Virgin is fantastic to work with. She takes a very collaborative approach and is not at all adverse to rolling up her sleeves and getting stuck into the weeds of the case.
  • Julian Maitland-Walker is a seasoned hand who is the perfect partner for both clients and Counsel

Meet the rest of our Litigation & Dispute Resolution team

Minehead, London, Taunton
Senior Partner
Minehead
Senior Associate Solicitor
Minehead
Trainee Solicitor

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