How Mediation Works

Once the parties agree to mediate, they appoint a mediator and agree on the format. The mediation may be online or in person. It may be a half-day or full-day session. The format should reflect the value, complexity, number of parties, client needs and time available.

Online mediation can reduce travel and can be reassuring for clients who would prefer to participate from home. In person mediation may be useful where the dispute is especially sensitive or multi-party.

The mediation fee and any cost-sharing arrangement should be confirmed before the process is booked, so the parties understand the commercial position before the mediation takes place.

Preparation is central to successful mediation. Legal teams usually prepare a position statement and provide key documents. The position statement should not simply repeat pleadings. It should explain the case with resolution in mind: what is agreed, what is disputed, what information matters and what obstacles need to be addressed. Although addressed to the mediator, your opponent's decision maker is the real target audience for this document.

The legal team should also consider settlement authority, client expectations, the negotiation strategy and any non-financial issues that may need discussion.

The mediator will usually speak confidentially with the legal teams before the mediation day. These discussions help the mediator understand the dispute, the people attending, any sensitivities or friction points and the practical issues likely to affect the process.

This is also an opportunity to discuss whether the claimant wishes to take part directly, whether a joint session is likely to help and whether any apology, explanation, learning issue or impact statement needs planning.

On the day, the mediator will usually meet each party privately. There may be an opening joint session, but this is optional and depends on the case dynamics. The mediator then moves between the parties, carrying authorised messages, asking questions and helping each side consider risk and options.

The discussions are confidential and without prejudice, subject to the terms agreed by the parties. The mediator may challenge, ask questions, test assumptions and help the parties consider risk, but they do not decide the claim or impose an outcome. The parties remain responsible for any agreement reached.

Much of the day involves careful movement between positions. The mediator may help parties decide when to share information, how to frame offers and how to respond to issues raised by the other side.

In personal injury and medical negligence claims, this may involve liability, causation, quantum, future care, costs, Part 36 context, non-financial issues and timing.

If agreement is reached, the legal representatives document the terms. This is usually by an agreement incorporating a draft court order or, if proceedings have not been issued, a contractual agreement.If the claim does not settle, the mediation may still be useful. It may identify missing evidence, narrow the dispute, clarify the gap between the parties or create the basis for further negotiation.

The case can continue if no settlement is reached. Mediation does not prevent the parties from returning to litigation if needed. By the end of a mediation, where settlement is not achieved, the parties will usually be very clear on the issues that need to be prepared for trial or to enable settlement.