Facilitative Mediation
A structured way to help parties reach their own agreement
Facilitative mediation is the form of mediation most lawyers have in mind when they refer to mediation, even if they do not use the technical term. The mediator manages the process, supports communication between the parties and helps focus discussions on resolution. The mediator does not decide the claim, give legal advice or impose a settlement.
For personal injury and clinical negligence disputes, facilitative mediation can be useful where the legal teams want an independent neutral to manage the negotiation and help the parties move beyond entrenched positions.
How the process works
Agreement to mediate and mediator appointment
The parties agree to mediate, appoint the mediator and confirm whether the process will take place online or in person.
Pre-mediation preparation
The parties prepare position statements and key documents. The mediator will usually speak with the legal teams confidentially before the mediation to understand the dispute, attendees and practical issues.
Private discussions
On the mediation day, the mediator usually meets each party privately. These discussions allow each side to explore risk, priorities and settlement options confidentially.
Optional joint sessions
Joint sessions may be used where the parties agree. The sessions may include the claimant or it may just be the legal representatives from each side. The format depends on the case dynamics and the people involved.
Managed negotiation
The mediator enables communication, asks questions, tests assumptions, and helps maintain momentum while the parties remain in control of the outcome.
Settlement or next steps
If agreement is reached, the terms are documented by the legal representatives. If not, the mediation may still narrow issues and help identify what is needed for further settlement discussions.
Why facilitative mediation can assist
In litigation, communication can become formal, positional and slow. Facilitative mediation provides a different setting. It allows the parties to speak through the mediator, share information in a controlled way and explore settlement without committing to any position.
This can help where negotiations have stalled, where the parties need to understand each other’s priorities or where the client needs a structured opportunity to engage with the process.Facilitative mediation results in a settlement on the day of the mediation or shortly afterwards in 75+% of cases.
What the mediator does not do
In facilitative mediation, the mediator does not tell the parties what the case is worth or who is likely to win. The mediator may reality test a position, ask difficult questions and help the parties examine risk, but the decision-making remains with the parties.
This makes facilitative mediation suitable where the parties want to keep control of the outcome while benefiting from a structured, independent process.
When facilitative mediation is most effective
Facilitative mediation may be appropriate where:
- the parties are willing to explore settlement
- there is enough information to negotiate meaningfully
- communication between the parties has become difficult
- the parties’ valuations are a long way apart
- the claim involves sensitive, or personal or psychological issues
- the parties want to address non-financial matters
- the legal teams want a controlled process before trial costs increase
- the client wants to avoid the uncertainty of court where possible
- a joint settlement meeting has not produced a resolution
It can also be used to narrow issues, even where a full settlement is not reached on the day.
How does it compare with a joint settlement meeting
A joint settlement meeting can work well where the parties are ready to negotiate directly. Facilitative mediation adds an independent neutral who manages the structure and communication. This can be valuable where the negotiation needs careful handling, where a client wants to participate or where the parties would benefit from private reality testing.
The mediator can also help manage the flow of offers and information, reducing the risk that the day becomes a simple exchange of fixed positions.
Preparation and practical requirements
Preparation does not need to mirror trial preparation, but it should be purposeful. Position statements should explain the case through the lens of resolution. Schedules and counter-schedules should be drafted suitably for negotiation. Those attending should understand the client’s priorities and have appropriate authority to settle.
The more clearly the parties identify the real barriers to resolution, the more useful the mediation is likely to be.
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Proof that effective mediation is not only about settlement, but about how the process feels
FAQs
It is usually arranged as a half-day or full-day session, depending on value, complexity, number of parties and the issues in dispute.
Yes. Entrenched positions are often a reason to consider mediation, provided the parties are willing to engage with the process.
The mediation may still narrow issues, clarify risk and help the parties understand what is needed before further settlement discussions.
Yes. Facilitative mediation can take place online or in person, depending on the needs of the parties.
Make An Enquiry
Share a few details about the claim, the parties and the stage of the case. We will come back with a suggested ADR route and the next practical step.
Initial Conversation
Tell us about the claim, the parties and the stage you are at.
Mediator Selection
You select a suitable independent specialist mediator.
Preparation
Pre-mediation discussions help clarify issues and prepare the day properly.
Mediation Day
A structured process focused on helping parties reach resolution, often within a single day.