Mediation

Introduction

**Mediation** is the most widely used form of **alternative dispute resolution (ADR)** in commercial and civil practice. A **neutral third party — the mediator — does not impose a decision** but instead facilitates communication between the disputing parties so that they may reach a **mutually satisfactory resolution** of their own making. This chapter examines the **characteristics** of mediation (its advantages and disadvantages), the **stages of the mediation process**, the treatment of **costs**, the **role of the solicitor**, the **tactical advantages** of participating, and the drafting of **mediation clauses** in contracts.

Assessment focus

For the SQE1 FLK1 Dispute Resolution assessment, you must understand the **options for resolving a dispute** other than litigation, and in particular **mediation** as a form of ADR. You should be able to **distinguish mediation from other ADR methods** — such as **arbitration**, **early neutral evaluation**, **final offer (pendulum) arbitration**, **judicial appraisal** and **med-arb** — and to identify mediation from the facts of a client scenario. Questions are single best answer questions (SBAQs) set in **realistic client-based scenarios**; you will be expected to **apply** your knowledge — for example, to recognise the **stages** of a mediation, to advise on **costs and recoverability**, and to appreciate the **tactical** reasons for engaging in ADR. This is a **closed-book** assessment, so ensure you can recall the core concepts, distinctions and examples from memory.

Study tips

1) Memorise the **defining feature** of mediation: the mediator **facilitates** but does **not impose** a decision (contrast arbitration, where the arbitrator decides). 2) Learn the **four stages** of the process in order: **Introduction → Plenary Session → Shuttle Diplomacy → Agreement**. 3) Remember the **costs rule**: each party bears its **own** costs and the **mediator's fees are usually split**; such costs are **not recoverable** in later litigation unless the court orders otherwise. 4) Note the **tactical advantages** of taking part even where settlement seems unlikely: **compliance with the pre-action protocol** (which influences later costs decisions) and **gaining insight** into the other side's case. 5) For a contractual **mediation clause**, check **Certainty, Trigger, Appropriateness and Post-Mediation Steps**.