What to expect

This is an explanation of the process of mediation and the way I like to conduct them. It is intended for the participants (the parties to the dispute) to read so that they have a understanding of what to expect. If anyone has any questions please feel free to email me at apye@pye-resolve.Com.

My role

My role as mediator is not to decide the case or to offer legal advice; it is simply to use my skills and experience to assist the participants in finding a mutually acceptable settlement for their dispute. I will listen carefully to everything that is said and use the information to encourage the participants to identify a permanent resolution. The participants need to look to persuade each other that a particular settlement is a better alternative than going to court or having a long-running dispute. How that process of persuasion is facilitated is one of my key roles as the mediator.

Initial private sessions

I begin by seeing each participant and their lawyers and supporters (if any) in private for an introductory session where I will explain the process. I will summarise the mediation agreement and ensure that it has been signed, and remind you that the process is confidential and without prejudice – thus no lawyer or participant (nor anyone else present) may refer to what is said during the mediation at any time or in any other place.

I will remind you that I will not discuss the mediation with anyone, and that no-one may call me as a witness before any court or tribunal to say what went on. I will be neutral and impartial and to do this I must be wholly outside any litigation. This safeguard in the mediation agreement and it is important because it reinforces my complete neutrality.

I will also ask the participants to confirm that they have authority to settle the claim. I would be grateful if you could ensure that you will be in a position to answer that question positively. If there are any limits to your authority to settle (for example a financial limit which can only be changed by referring to someone not present) then I need to know that.

Finally, I will explore what each participant seeks to achieve from the day and have an initial discussion about how that might be achieved. As I will have read all of the papers provided to me in advance I usually ask some questions about the issues in the case. One question that I generally ask is the amount of legal costs spend up to the mediation and the estimate of costs to be spent to the end of a trial, if the mediation is unsuccessful.

These initial sessions usually take about 20-30 minutes for each party.

Joint session

Following the initial private sessions, unless anyone has any objections or it does not seem appropriate, I will invite everyone to the main room for a joint session (sometimes referred to as a plenary session). I usually ask those present to agree some ground rules. Usually those attending agree to use first names, to avoid personal accusations, and not to talk over each other.

I will invite each of you to summarise in turn what it is you hope to achieve from the mediation. I will not ask you to state specific sums of money or remedies at this stage but ask you to talk in general terms. I am very flexible in my approach to joint sessions and I encourage the participants to speak, as well as their lawyers, and to address each other directly, as this can often be very beneficial to the process. I may (if it seems appropriate) try to facilitate a discussion between you in open session. Initially I shall look to understand what if any common ground there may be and what alternatives are open to you all.

One issue that I may well touch on in joint session is the amount of legal costs that each side has spent and will spend if the case does not settle, and the potential liability for the opponent’s costs following an unsuccessful outcome at trial. This is often helpful as it starts to focus minds clearly on what is potentially at stake in the dispute – a theme that I will explore further over the course of the mediation.

People sometimes find that it is more helpful to move to private rooms quite quickly, and for me to shuttle between them for most of the mediation. I shall make suggestions based upon what appears to me to be most helpful at the time.

It is not possible for me to predict in advance how long a joint session may go on for; it entirely depends upon the dynamic that develops. However, I shall stop the session if at any point I consider that it is becoming detrimental to the process. Equally, if you are not comfortable with the joint session then you may terminate it at any time.

More about private sessions

My practice is that anything said to me in private session will be confidential between myself and the people I am then with – unless they specifically authorise me to repeat what they have said in the other room. This is an important safeguard for you as it should enable you to be candid with me about your position, which greatly benefits the process.

In that context, if it is an offer, I may ask the person making it or their lawyer to write it down so there is no room for doubt about the terms.

If it is some other fact or statement, argument or other message, I may summarise it in my own words – but I will check with you that I have done so correctly before leaving the room.

You will appreciate that you should not ask me what I have been told in private session in the other room. I shall not disclose that information unless authorised to do so.

I prefer where possible to remain with the participants as much as possible so that I can get a feel for how their thinking is developing. This includes when you are discussing the case with your legal team, when I will say nothing at all. I will therefore encourage you to let me stay with you as much as possible, but of course will not be offended if you ask me to leave.