Frequently Asked Questions

Chances of success

Why is mediation so successful?

The kernel of mediation is that the parties themselves devise the solution bringing practical matters to bear. The solution is therefore more tailored to their requirements and as they have crafted the agreement themselves it is more likely to stick.

What are the chances of the mediation being successful?

About 80% of mediations come to a successful conclusion between the parties either on the day or shortly afterwards. Because the parties have devised their own solutions to the dispute the agreement reached is more likely to last and be adhered to by the parties. Where a successful conclusion isn’t reached on the day of mediation, about 5% resolve very shortly afterwards.

Time

How long does mediation take?

Many commercial disputes can be resolved within a day. More complex disputes may take longer. Parties can agree to continue after business hours or schedule a resumption of the process. Work place disputes may benefit from a number of sessions of shorter duration.

How long does it take to schedule mediation?

Mediation requires a short-lead time. The mediator requires only top-level information and documentation on the issues involved. The process itself is used to identify the issues, the importance of each of the issues and the way forward to solve the dispute. As such mediation can be scheduled within days of the parties agreeing to undertake the process. This is especially useful for more urgent situations or last minute attempts to avoid litigation and court appearance.

Confidentiality

Will my confidential information be disclosed to the other party?

Each party has complete authorisation and control of information which is shared with the other party. Where the sessions are with the mediator and one party only, mediators are trained to ensure that only the information you wish disclosed is disclosed. Where the parties are in joint sessions, the party themselves will have control of the information they disclose.

If a settlement is not reached, can the other party use any information they have learned during the process?

No. All mediation is confidential and parties are legally bound not to disclose any information obtained during the mediation process.

What about the Mediator? Can they be subpoenaed for subsequent proceedings?

No. All parties involved in the mediation sign an agreement which precludes the mediator being subpoenaed.

What about other parties present – are they bound by confidentiality?

Yes. All present at the mediation ( advisors, colleagues, family, friends ) must also sign the confidentiality agreement before the mediation starts.

Who should consider mediation?

What kind of disputes are suitable for mediation?

The mediation process can be applied in most dispute situations. It is used for resolving conflict in the workplace, between corporate entities, educational and voluntary organisations, business and professional relationships, family businesses, communities – anywhere there is a conflict.

When is mediation not suitable?

Mediation is not suitable if

• you want a point of law decided
• you want publicity from the proceedings or the outcome
• you are using litigation only for strategic purposes

In what situations does mediation fail?

The mediation process has an extremely high rate of success (80%) either at or shortly after the mediation. In cases where settlement is not reached, parties may benefit from partial resolution and the clarification of the issues will help future litigation.

Professional Advisors

Why do I need another party, can’t our solicitors mediate?

Mediation is a skill which is different to the skills of being a lawyer. Solicitors act for their clients whereas mediators are neutral and independent of any of the parties.

Solicitors have a very important role to play for their clients in mediation – they act as their advisor on the legal efficacy of possible solutions, they can give a clear assessment of the consequences of not settling and being with their client and advising generally is of real benefit to the process. - This is particularly so in a complex dispute.

May my lawyer be present?

Yes. Asking lawyers to be part of the process is up to the individual parties. Lawyers, especially those with experience of mediation, can add very positively to the process.

May other professional advisors be present?

Yes. Experts such as accountants, doctors, actuaries, engineers and pension specialists can be present or available to be contacted by phone if a specific point arises.

Are the mediators specially trained?

Yes. The process in mediation is very different to the litigation process and to be a successful mediator you need both training and experience to bring about a successful and lasting settlement. The Mediators on the EMS panel are specifically trained to mediate and they will have undergone specialist mediation training. They may also have become accredited to a mediation body.

Binding

What makes a mediation settlement binding?

Through the process any agreement is not binding, enabling the issues to be resolved piece by piece. When agreement is reached on the total dispute, it is written down and signed by all parties. Only at this stage does it become legally binding

What does binding mean?

The agreement incorporating all of the agreed terms, when signed, becomes at that moment a legally binding and enforceable agreement.

Costs

Who pays?

Unless otherwise agreed, each party pays their own costs of the mediation. This includes their portion of EMS’ fees, their own legal and other professional fees, if any, and any outlays e.g. room hire, refreshments, phones etc

When are the costs payable?

Mediation fees and a sum on account for outlays are payable in advance. If the mediation exceeds the agreed time or further outlays are incurred, a balancing invoice will be issued to the parties on completion of the mediation.
Fees are paid in advance of any subsequent session.

Am I increasing my costs by trying mediation?

About 80% of mediation cases are successfully resolved allowing litigation to be avoided or struck out. A further 5% of cases are resolved soon after the mediation process. The remaining 15% which don’t achieve a full settlement through mediation, benefit from the clarification of issues allowing litigation to focus on core outstanding elements, reducing time and cost.

What fees does EMS charge?

Our fee structure is designed to be the most appropriate to meet the parameters of each individual case. Please contact us to get a confidential estimate of costs.

Miscellaneous

How is the mediator selected?

EMS, using their expertise, having ascertained the subject matter and complexity of the issues, will suggest the mediator they believe to be most suited to the case and the parties will be given every opportunity to ask for an alternative mediator and will automatically be offered another suggestion in the event of a conflict of interest.

Is anybody else allowed in the room?

Many mediations work through a series of discussions between the mediator and each party separately. There can be quite lengthy breaks between these sessions when the mediator is with the other party so it is recommended that you don’t come on your own. You could bring your legal advisor or a colleague, family member or friend. They don’t have to attend the sessions. If they do they must sign the confidentiality agreement and the mediator and the other party must be notified in advance of who is attending.