Mediation

See also: Family Mediation 

What is mediation?

Mediation is an alternative to having your case heard in court. It can be quicker, less stressful and less costly than a court hearing. The idea is that both sides should be able to come to an agreement to settle the claim or resolve an issue within the claim rather than seek a court order.

Mediation cannot be used in the small claims procedure. 

How do I apply for mediation?

Once a defence has been filed, either party can apply to the court for mediation. In your application you should state:

• the name and address of the person you wish to be mediator. Both parties must agree to this person being the mediator

• the date on which the mediation will take place

• the documents each party wants to be given to the mediator.

Any application for mediation must come with the written consent of both parties. 

Mediation directions

Unless either party withdraws their consent to mediation, the court will refer the claim or matter to mediation (this is known as a mediation direction).

Contained in this mediation direction will be the date by which the mediator must make a progress report.

A mediation direction can be rescinded by the court at any time upon the application of any of the parties. 

Does my claim continue in court while we are in mediation?

If a mediation direction has been made the claim will not continue going through court (it will be "stayed") while mediation takes place until either:-

• the mediator makes a report to the court of an agreement reached between the parties or a report that he has terminated the mediation

• the date, specified in the mediation direction by which the mediator must report on progress in the mediation has passed

whichever is the sooner.

The period in which the claim is stayed for the purposes of the mediation is not taken into account in relation to the time given by the rules to do any act or for taking any step. 

Coming to a decision

When an agreement is reached between the two parties:

• the mediator will report the agreement to the courts

• the parties should include the agreement in a consent order.

Depending on the content of the consent order it will then be considered for approval by either a judge or by a court officer.

If, for any reason, the mediator thinks that the mediation should not continue he will;

• stop the mediation immediately

• inform the court that the mediation has been stopped. 

What happens if we cannot reach an agreement?

If you and the other party cannot reach an agreement, the matter will have to be listed for a court hearing and continue in court. 

Can the court stop mediation?

Yes, there are situations where the court may feel it necessary to stop the mediation process. This could be because;

• it considers it inappropriate or unreasonable to continue

• it wishes to stop the appointment of the mediator

• it wishes to stop the mediation in order to appoint a new mediator if the original one has died, stopped being a mediator or the court feels the mediator should not continue in their role.

If the court wants to appoint a different mediator, it can order, with the agreement of the parties, that the mediation continue on the same basis. 

How much does mediation cost?

Unless both parties can agree on costs, they will be in the discretion of the court in accordance with relevant High Court costs rules.