Bristol Courts Mediation Scheme

Mediation is one way for people to settle disputes or lawsuits outside of court. In mediation, a neutral third party - the mediator - helps the disputing parties look for a solution that works for them.

The purpose of mediation is not to determine who wins and who loses, but to develop creative solutions to disputes in a way that is not possible at a trial.

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Resolving any dispute by pursing a case all the way to trial involves risks and costs (both time and money), stress, uncertainty and lost opportunity costs. Often claims go to court because both parties believe that they are right. Once a matter is before a judge, the parties no longer have control over the outcome. The decision is in the judge's hands and the judge will impose a decision on the parties.

As a result, there will always be a significant risk that the judge will decide against them. Yet parties tend to overestimate their chances of success in court and fail to take full account of the true costs of losing.

In mediation, the parties retain control over the outcome; they are able to decide how you want to resolve the dispute and don’t have to accept an outcome you are not happy with.

Mediation is usually much quicker and much less expensive than going to court, so it can be a more efficient way of resolving disagreements that allows everyone to move on from the problem sooner. It provides a safe and supportive environment. The mediator will listen to all views, talking to you privately, and sometimes together with the other party, to help guide you through the process.

Mediation is confidential. Where disputes are resolved through the court, it is potentially a very public process. However, when disputes are settled out of court through mediation, it is private between you and the other party. Parties in mediation may speak more openly than in court. Many people find mediation a more comfortable and constructive process than a trial.

Mediation can help preserve your relationships. Settling a dispute through an adversarial court battle can put added pressure on the relationship between both parties. However, mediation helps you focus on communicating effectively with each other to find solutions that work for all. In situations where the parties have an ongoing relationship, mediation is particularly helpful because it promotes cooperative problem-solving and improved communications.

Mediation often leads to resolutions that are tailored to the needs of all parties. Generally, the best solution to a problem is one worked out by the parties themselves.

Many people find mediation more satisfying than a trial because they play an active role in resolving their dispute, rather than having a solution determined by a judge.

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The court has taken into account a number of relevant factors and considers that this case is suitable for mediation. The decision takes into account the fact that many parties negotiate during the course of litigation and that well over 90 percent of all lawsuits settle before getting to the trial stage.

The purpose of the order is to direct the parties towards alternative dispute resolution in the form of mediation early in the litigation process before they incur the costs of a Cost & Case Management Conference and thereafter the costs of complying with a case management order and progressing the litigation.

Early alternative dispute resolution does not require completion of all case management steps. The parties should have complied with the relevant pre-action protocol and will be aware of the issues they face.

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Mediation can take place at any time before your case reaches a hearing or trial at court, and the best time may depend on your individual case.  However, in general, it is best to try mediation as soon as you can. This will help reduce the amount of time and money spent on the dispute and open a dialogue with the other party before they become too fixed in their position.

Bearing in mind the exchange of information which should already have taken place, it should be possible to make an early assessment of how the litigation will unfold. If parties are reluctant to consider settlement at this stage, they need to consider how much more time and money they might need to invest in order to be able to take a better view.

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Mediation can be used to resolve almost all types of civil dispute, including:

• professional negligence

• personal injury

• breach of contract

• money disputes

• bankruptcy

• wills and probate disputes

• trust disputes

• charities disputes

• guardianship disputes

• land or property disputes

• landlord and tenant disputes

• neighbour disputes

• intellectual property disputes

• defamation

It is particularly suitable where the costs are likely to be disproportionate to the financial value of the dispute but is often appropriate even when that is not the case.

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In the ideal case, it will achieve early settlement of a case which may otherwise take 18 months or more to reach trial. Even if settlement is not achieved it can be the case that one or more issues are resolved thus saving time and costs in the ongoing litigation.

The parties will be more aware of the feelings the other has towards the issues or the case generally. Parties can agree solutions that the court has no power to make.

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Suitable civil, case-managed actions (except family cases) that are defended are stayed (temporarily suspended) so as to enable mediation to take place. The stay can be lifted only if the parties apply to the court and obtain a court order.

It is recognised that there may be some cases which are not appropriate for mediation for reasons which are not apparent from the statements of case. Therefore, the parties have the opportunity to apply to the court for this order to be set aside.

The mediation is conducted by a private-sector mediator. Parties may agree to select a mediator from the Association of South West Mediators or any other provider.

The mediation should take place within the period referred to in the Order.  However, any party may apply to extend the stay to enable completion of the mediation provided such application is made no later than 7 days before expiry of the current stay.

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Yes. What you say during mediation and the outcome at the end can only be shared if everyone agrees to it.

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All parties should attend the mediation session. If you want to you can attend mediation on your own or you can bring a partner, family members or friends with you for support. 

Depending on the type of dispute you may also want to have a legal representative, known as a mediation advocate, with you. If a party is represented by a lawyer, the lawyer should also attend. The parties, their lawyers and the mediator are the only ones who have a right to be present in mediation. No one else may attend without the parties' consent. The mediator will assist in getting everyone’s agreement as to who will be attending.

For the mediation to proceed, parties must have authority to settle the case or have ready telephone access to anyone whose approval is needed to settle. If a corporation, partnership or other organisation is a claimant or a defendant, it should be represented by an individual who is authorised to make a decision on its behalf.

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In mediation, you can still work to find an agreement without being in the same room or space with the other person - you don’t have to spend time with the person you are in mediation with if you choose not to.

Your mediator can help you find a way to resolve your disagreements without being in direct contact.

Mediation online is also possible, giving participants greater space and the option of mediating from your own home or other private space.

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The mediation may be held at any location that is convenient and acceptable to the parties, including the mediator's office, the office of one of the parties or one of the lawyers. Alternatively it can take place “remotely” using a video platform organised by the mediator.

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Both sides may come to an agreement in just a couple of hours or it might take more than one session over a longer period. However, the majority of civil mediations are concluded in a day.

The length of a mediation session and the number of sessions required depend on a variety of factors, including the complexity of the case, how well the parties have prepared for the mediation, how far they have progressed in settlement discussions and whether the mediation process is working.

Under this scheme parties are not required to continue mediation for a minimum period. The mediator may end the mediation at any time if the case is settled or if he or she concludes that the process is not constructive for the parties. If the mediation is not concluded within the period initially allotted, the mediator may, with the consent of all parties, continue the session.

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This can vary depending on the type of mediation but in general the mediator will talk to both sides separately to hear their version of events, and, if agreed, may then bring all the participants together to talk. They are there to assist with the negotiation so both sides can hopefully reach a settlement they agree on.

Mediators are experts in communication and understand the strong emotions that can be generated when we are in dispute.

What is said remains private. Information arising from the mediation cannot be used outside the mediation for any court purpose.

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No. The mediator will help you consider different options to resolve the dispute, but they don’t give advice. Their role is to facilitate a conversation between you and the other side.

However, they can assist you with communication and managing emotions, helping you to make your points calmly and clearly, and to listen to the other side without interrupting or getting angry.

The mediator will support you if you are finding the process stressful.

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The mediator helps to keep things moving forward so both sides feel progress is being made, but the mediator doesn’t decide on the outcome.

Mediators are skilled at helping parties to see a way through the dispute, but do not impose solutions.

It is for you and the other side to agree on how you are going to settle the dispute.

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In most types of mediation, if you agree on a resolution, you will sign a written agreement, known as a ‘settlement agreement’, which will set out the agreement you have reached.

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Agreements resolving some or all of the issues in dispute must be in writing and signed by the parties or their lawyers. If the agreement settles the case, then, since court proceedings have already commenced, an order of the court which sets out what was agreed in mediation can be made by agreement of those involved (this is known as a ‘consent order’ or a ‘Tomlin order’).

Agreements reached at mediation are legally binding. If a party fails to comply with a signed agreement, any other party to the agreement may make apply to the court for appropriate enforcement action.

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You might have made good progress but not be quite at the position of settlement yet. It can often be helpful to take a break to think things through then resume mediation.

Mediation has a high success rate, with the majority of civil disputes settling on the day or shortly after. Settlement of the court proceedings is not the only positive outcome of a mediation. A mediation is considered successful even if the parties do not settle but gain a better understanding of the other side's position, if they have narrowed the issues or settled some of the issues, or if they have agreed on a process to resolve issues later in the proceedings.

If, at any stage, you decide you want to proceed with taking your case to court then you can do that. Claims that do not settle at mediation continue through the court process.

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All parties share the cost of the mediation session. Parties pay mediators directly for their services. Each party will usually pay an equal share of the mediator's fees.

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It will depend on the type of mediation and the complexity of the dispute. You should ask your mediator or mediation provider what their costs are in advance of the mediation. If the session is not concluded within the allotted time, the mediation may continue, with the consent of all parties, at a rate agreed upon by the parties and the mediator in advance of the session.

In addition to fees, a mediator may charge expenses that the parties agree to before the mediation begins.

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Both lawyers and non-lawyers are qualified and trained to mediate disputes. It is important that all parties are comfortable with their mediator. Parties and/or their lawyers are strongly encouraged to contact mediators directly to obtain information about such matters as:

• the mediator's training, experience, knowledge about the court process, and familiarity with the kinds of issues involved in the lawsuit

• the mediator's approach to mediation

• the mediator's fees and expenses

• the mediator's references

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Although the majority of mediators will be practitioners who are regulated by their professional bodies, there is no formal regulation of mediators as a defined group.

However, the Civil Mediation Council has its own system of voluntary regulation where registered mediators have been trained specifically in mediation to industry accepted standards, are fully insured, abide by a Code of Conduct, and provide access to a complaints process if necessary. All mediators provided by the Association of South West Mediators are regulated by the Civil Mediation Council.

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Once a mediator has been selected or appointed, s/he will guide you through the steps that you need to take. Before the mediation session begins, the mediator will explain the mediation process and will provide a written "agreement to mediate" for the parties to sign, which sets out the terms of the mediation.

Although mediation is an informal process, the mediator structures the discussion and may talk to the parties separately, suggest that the parties exchange further information and will often agree a date for the mediation to take place. The mediator will often talk to the parties and may meet them separately before the mediation day. All parties have an opportunity to present their side of the story, to explain what is important to them and to ask questions.

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To get the maximum benefit from mediation it is important to think about the case realistically and creatively. Before the mediation, parties who are represented should work with their lawyers to prepare for a session that will be cooperative and productive. Parties might consider these questions in preparing for mediation:

• What is the best result each party can hope for in the lawsuit and what is the worst result that could happen?

• What is each party trying to accomplish by the lawsuit? What is really important to each of them? (It may not be mentioned in the lawsuit itself).

• What are the main concerns of the other parties and how can they be addressed?

• Are there any solutions to the dispute that can reconcile the interests of all parties?

• Are there any limits on each party's ability to settle?

• What will happen if the case does not settle at mediation?

• Is there anything which could be offered or asked for which may cost little but provide real benefit to the other party?

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The lawyer's role may include:

• advising the client about and ensuring compliance with court procedures

• advising the client about the selection of a mediator

• preparing the client for effective participation in the mediation session

• advising on the costs implications of the various possible outcomes

• providing legal and strategic advice during the mediation process

• supporting the client in achieving their key objectives

• participating in the mediation process in good faith

• protecting the client's legal interests in connection with any agreement reached

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Lawyers are aware that the parties participate directly and actively in mediation. To prepare a party for mediation, the lawyer will:

• describe the mediation process and what will happen at the session

• explain what is expected of the client

• remind the client that the objective of the mediation is not to "win", but to reach a satisfactory resolution

• discuss mediation and negotiation strategies

• ensure that the client or client's representative has authority to settle

• discuss the costs, risks and benefits of not reaching a settlement

• ensure that the client is conversant with the facts and issues of the case

• examine the strengths and weaknesses of each party's case, both on the facts and on the law

• explore the client's position, goals and interests

• attempt to understand what the interests of the other parties might be

• advise the client on how to best put forward his or her interests

• advise the client about any confidential information which should not be disclosed

• work with the client to prepare an opening statement

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Throughout the session, the lawyer can help the client by gauging the client's reactions and suggesting breaks where appropriate. During breaks in the session, the lawyer can discuss any observations about the progress of the session and advise the client on negotiation tactics and possible compromise solutions, where appropriate.

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Where the case settles completely or partially, the lawyer will help to draft and/or review any agreement reached to ensure that it meets the client's interests and is legally binding.

Where the case does not settle, or certain issues remain outstanding, the lawyer will analyse the discussions that took place during the mediation and provide the client with advice concerning the next steps, which may include:

• consideration of the need for further mediation or other alternative dispute resolution processes

• consideration of settlement options that were explored, but not adopted, at the session.

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In the first instance you should contact the mediator to explain why you are unhappy and give them the opportunity to put things right.

If the mediator belongs to a professional body, it should look into your complaint for you. The Civil Mediation Council has its own complaints procedures. You might also want to check your consumer rights to ensure you’ve received a fair service.

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