Mediation HOW MEDIATION CAN WORK FOR YOUR CLIENTS

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Mediation HOW MEDIATION CAN WORK FOR YOUR CLIENTS Lavinia Shaw-Brown 14 April 2015

Mediation HOW MEDIATION CAN WORK FOR YOUR CLIENTS Lavinia Shaw-Brown 14 April 2015

Mediation What is mediation? “Mediation is a flexible process conducted confidentially in which a

Mediation What is mediation? “Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution. "

Mediation Why choose civil mediation? Flexible • Informal and quick to arrange • Practical

Mediation Why choose civil mediation? Flexible • Informal and quick to arrange • Practical as well as financial solutions • Less stressful than going to court • No commitment unless agreement is reached • Court process still available if unsuccessful

Mediation The Essentials • • An Independent Mediator to facilitate settlement Parties, with or

Mediation The Essentials • • An Independent Mediator to facilitate settlement Parties, with or without legal advisers Willingness to give it a go – desire to settle Time – 3 hours + for meetings / 1 hour + for telephone

Mediation At the mediation: roles of the professionals • • The mediator –Works confidentially

Mediation At the mediation: roles of the professionals • • The mediator –Works confidentially with each party –Facilitates discussions –Helps broker a deal, e. g. chases progress The lawyer –Assists and supports the client –Prepares settlement agreement REMEMBER IT IS THE CLIENT’S DAY!

Mediation At the mediation: mediator’s opening statement • • • Explains process and ‘rules

Mediation At the mediation: mediator’s opening statement • • • Explains process and ‘rules of the game’ Without prejudice / confidentiality Parties in control of day and any settlement parties’ opening statements • • • Brief outline of history of dispute Chance to ‘let off steam’ Summary of hopes/aims for the day

Mediation At the mediation: caucuses • Private meetings between party and mediator • Mediator

Mediation At the mediation: caucuses • Private meetings between party and mediator • Mediator shuttles between the parties • Frank and confidential discussion of party’s real position/real interests • Mediator will disclose to other party only what he/she is specifically authorised to disclose • Very flexible process in hands of the mediator

Mediation At the mediation: if a deal is reached • • • Settlement Agreement

Mediation At the mediation: if a deal is reached • • • Settlement Agreement drawn up there and then Documentation of settlement: is this clear? Enforceability: do the parties have authority to settle? Importance of signing agreement at the mediation If matter in court, Tomlin Order usually used

Mediation At the mediation: if no deal is reached • All is not lost!

Mediation At the mediation: if no deal is reached • All is not lost! - parties may reach a deal later • Still a valuable exercise: e. g. cathartic process, insights gained and information obtained • One applicant whose mediation did not settle “I learnt more in one afternoon about this case than I had learnt in ten years of litigation”

Mediation When can telephone mediation be used? • • • For simpler cases –

Mediation When can telephone mediation be used? • • • For simpler cases – usually unrepresented parties Parties are at different ends of the country One or both parties prefer it One party disabled or very stressed If amount in dispute is ‘small’

Mediation How does telephone mediation work? • Mediator makes arrangements to suit the parties

Mediation How does telephone mediation work? • Mediator makes arrangements to suit the parties and his/her convenience • Usually done in one session with a series of phone calls • All basic ‘rules’ the same as for meetings including Agreement to Mediate • If settled, mediator draws up settlement agreement for all to sign

Mediation Family and Community Mediation • • For what sorts of disputes Main differences

Mediation Family and Community Mediation • • For what sorts of disputes Main differences in delivery method Required by the Courts – MIAMs Legal aid position

Mediation How to find an accredited mediator? • Is the dispute a civil matter,

Mediation How to find an accredited mediator? • Is the dispute a civil matter, a family matter or more suitable for local community mediation provider? • For civil disputes – go to National Mediation Providers Association www. nmpa. org. uk • On website information about mediation, costs involved and application form for an accredited mediator • May be possible to find a free mediator in some circumstances

Mediation For Family Mediation • Family Mediation Council – www. familymediationcouncil. org. uk •

Mediation For Family Mediation • Family Mediation Council – www. familymediationcouncil. org. uk • Membership organisations cover England Wales and search facility available on website • Council guarantees a Code of Practice for the members • Legal aided mediators also available

Mediation For Community Mediation • Google ‘community/neighbour mediation’ and locality • Generally small local

Mediation For Community Mediation • Google ‘community/neighbour mediation’ and locality • Generally small local providers • Often able to provide free mediation or low cost

Mediation What do parties say? Very Positive “Mediation brought to an end the years

Mediation What do parties say? Very Positive “Mediation brought to an end the years of pain and heartache – I wish I had known about this service sooner” “It was very satisfactory – avoiding confrontation and stress. I am very grateful to have been accepted for this service and cannot praise it highly enough” “After 13 years of problems being able to come to a definitive conclusion in an afternoon was little short of miraculous!”