WHAT IS MEDIATION?
Mediation is an alternative method of resolving disputes outside a formal court environment.
Mediation allows parties in dispute to seek to settle their differences themselves, in a private and confidential manner. The parties jointly appoint the mediator, who is independent and impartial and who seeks to facilitate an agreement acceptable to all. The key issue is that the parties are provided with a structured environment, ordered and driven by the mediator, which allows them to negotiate their own settlement arrangements.
Whilst the parties can be represented and accompanied by their own legal representatives at the mediation, this is not required (and indeed for smaller matters this might be discouraged). The issues that can be discussed and considered can go far beyond the narrow constraints of a legal case and the parameters permitted by a court hearing. These can include reputational risk, continuing business or personal relations, practical arrangements and compromises beyond the scope of the claim and so on.
Mediation can occur at any point in the course of a dispute – at an early stage or right up to the actual court hearing. Increasingly court processes require the parties to have considered the option of a mediation (if not actually to have undertaken one) prior to the claim getting to court and this is likely to increase over time as the overriding imperative of streamlining and speeding up the judicial system takes hold.
Alongside the flexibility of the process and the issues and outcomes that can be considered and achieved in a mediation, perhaps the most compelling reason for considering this process is the one of legal costs. The reality of litigation today is that the cost is becoming out of proportion to the sums in dispute. Even the cost of issuing proceedings has recently risen dramatically and the exposure to both your own and your opponents’ costs (if you lose the case) can be considerable. Time and again, the legal cost exposure outweighs by a huge factor the amount of the sum in dispute. That is without also factoring in the amount of management and emotional time and energy that is invested in a claim, which is often underestimated. Mediation allows a quick, informal and, in real terms, very cost effective opportunity to seek to settle the dispute without incurring those costs and risks.
HOW DOES MEDIATION WORK
The key to mediation is that it is a flexible and relatively informal process. The parties to a dispute appoint the mediator and this is on the basis that he acts for neither of them, advises neither of them and simply seeks to help the parties agree for themselves a settlement to which they can all agree. He is absolutely impartial and independent of the parties themselves.
Typically a mediation commences with a joint meeting of all the parties, at which they each make a brief presentation of their case and what they are hoping to achieve. The parties then separate and the mediator “shuffles” between them, exploring (on a confidential basis) the issues and potential areas of compromise and agreement. The mediator cannot enforce or impose a settlement and will only ever reveal issues imparted by one party to the other(s) with the express consent of the former. Eventually the issues in dispute narrow and areas of compromise emerge and finally, if successful, an agreement is reached and documented. Only at that stage does it become binding on the parties. Unfortunately this does not always happen, but the mediation is undertaken on terms that it is entirely “without prejudice” which means that anything said or offered by the parties during the process is entirely confidential and private and cannot be revealed again in any other context (including if the case does eventually go to court).
The parties agree a time period for the mediation – usually a full day (perhaps less for smaller issues and disputes) and pay the mediators fees on a 50:50 basis (in advance). If the mediation overruns the agreed period, the mediator is then paid on an hourly rate (again on the same 50:50 basis).
The mediation process is, if nothing else, informal and variations to the process outlined above can always be agreed by all parties. Mediation can take place in any appropriate space and rooms can be sourced if required.
Malcolm is a solicitor with over 30 years’ experience in an international commercial law firm in the City of London, where he became the Managing Partner and led the firm into merger with a larger national practice to create a top 40 international law firm. During his time in practice Malcolm undertook a range of work (both litigious and non-contentious) including banking, leasing and asset finance, shipping and trade as well as general company and commercial work.
Subsequently he spent a number of years as chief executive of a leading set of barristers’ Chambers.
He has also owned and managed a commercial art gallery in west London.
Malcolm therefore brings a blend of legal, commercial, international and management experience to his mediation skills. Whilst fully conversant with the litigation process, Malcolm has spent the larger part of his career in finding solutions for clients’ commercial needs and tailoring outcomes that leave all parties satisfied. He has a practical, pro-active and common sense attitude and displays a relaxed and approachable manner
He was trained by CEDR (one of the leading mediation bodies) and is fully accredited by them.
Malcolm has experience in the following areas:-
- General commercial and contractual issues (including consumer affairs)
- Business relationships and disputes
- Banking and finance issues (including leasing and asset finance)
- Employment and HR issues
- Professional negligence
- Shipping, trade and transportation
- Art and cultural issues.
Malcolm is a member of:
ART RESOLVE (a body of mediators offering alternative dispute resolution for art and cultural property disputes). See: www.artresolve.org
Clerksoom (a nationwide chambers of barristers and mediators). See: www.clerksroom.com
FEES AND TERMS
Mediation services are offered on an agreed hourly basis, payable in advance and split equally amongst the parties. The amount of the fees varies depending on the length of the fixed period of time required (usually half or a full day) and the number of parties, the value of the claim(s) in dispute and the complexity of the issues involved. The sum quoted for the fixed period includes time spent in preparation by the mediator, assuming a reasonable amount of paperwork (and in the event that unusual amounts of documentation need to be reviewed in advance, additional sums will be charged). The mediator’s hourly rate will apply to any time spent, by agreement between all parties, beyond the initial fixed period.
For a quote for fees please contact Malcolm.
The mediation is conducted subject to and on the basis of the standard Mediation Terms set out in this website and the parties will be asked to sign a Mediation Agreement in advance of the mediation. The standard terms of the Mediation Agreement are also set out in this website.