The PLA Mediation Facility can be used by anyone, whether or not they are members of the PLA. It is intended to facilitate the private appointment of a Mediator. It is not run by or associated with any other organisation. For the list of PLA members willing to accept appointments go to Registered Mediators. There is no charge for the use of the facility.
An introduction to mediation
Mediation can be a swift, cost effective and productive way of settling disputes without the need for litigation.
Recently, the Courts have been looking at alternatives to legal proceedings which are more streamlined, informal and cost effective and mediation has become a course of action the Courts are encouraging parties to pursue. In some Courts the judiciary are now requiring parties in certain cases, for example some small claims, to mediate before being able to pursue Court proceedings.
In January 2015 the Royal Institution of Chartered Surveyors (RICS), in conjunction with the PLA, published a Mediation Guidance Note. It is aimed at surveyors advising clients in relation to a dispute and gives guidance on when mediation should be considered, explains how it works and sets out some of the benefits of mediation over litigation. The guidance note explains that mediation can be used in all types of property disputes (including commercial, residential and leasehold property issues, construction, planning and neighbour disputes).
What exactly is mediation?
Mediation is a process whereby parties to a dispute invite a neutral individual ("the Mediator") to facilitate negotiations between them with a view to achieving a resolution of their dispute. It is a private procedure and therefore attractive in that it is conducted on a confidential basis away from the glare of publicity. Mediation is entirely voluntary, which means that either party can walk away from the process at any time. It is also without prejudice, which means that anything disclosed during the process cannot be relied upon by either party in existing or subsequent legal proceedings. Whilst the Mediator may seek to clarify the issues in dispute during the mediation process the rules governing admissibility of and presentation of evidence do not apply.
What disputes are suitable for mediation?
Any dispute is suitable for mediation as long as both parties are willing to try it. However, some cases may be more suitable than others. For example, where opponents have a long-term relationship to protect or where the parties are seeking a remedy which is not available in Court proceedings, such as the opportunity to discuss issues face to face with their opponent or to extract an apology for past behaviour. Some multi-party disputes may also be suitable for mediation because they are often complex and the cost of pursuing them through more traditional methods can be extremely high. The majority of cases referred to mediation settle and the level of satisfction amongst parties to disputes which have been mediated tends to be significantly higher than in those who are party to disputes determined by the Court.
Why should mediation work?
The mediation process - in contrast to the conduct of legal proceedings or negotiations - is designed to be non-confrontational and facilitative with the aim being to find a mutually satisfying resolution of the problem. Mediation allows an exploration of issues which may extend beyond the ambit of the dispute and enable the parties to consider means of resolving the issues which could not be ordered by the Court.
To suggest mediation is a sign of weakness!
This is a common misconception. To agree to mediate is neither a sign of weakness nor a sign of strength. It is common sense. The parties are simply agreeing to talk and to see if they can resolve their differences in a way that satisfies them all.
How does it work?
The parties can either represent themselves or have their legal advisor with them to assist with the negotiations. Whoever attends the mediation must have the authority to settle the matter at the mediation.
The parties will either agree the choice of Mediator or ask one of the mediation providers to select a suitable Mediator. The Mediator will normally have sought and received a basic understnading of the dispute from both parties prior to the mediation. The parties will be required to enter into a Mediation Agreement which will record details of the process and include arrangements for settlement of the Mediator's fee. It is usual for the fee to be borne equally by the parties and for each party to bear their own costs in attending the mediation. For a standard form of Mediation Agreement click here.
What is set out below is a typical procedure in a commercial mediation. However, the procedure is flexible and can be varied depending on what the parties and the Mediator consider appropriate.
- At the commencement of the mediation, the Mediator will explain to the parties jointly the nature of his role; that the procedure is entirely voluntary and that either party may end it at any time; and that it is without projudice to any legal proceedings between the parties. He will also explain his role as facilitator to try to achieve a settlement. He is not a judge and he will neither form a decision on the parties' respective positions, nor impose a decision on them. That is not to say that he will not challenge their position or ask searching questions in order to seek to clarify the issues and to facilitate a settlement of the dispute.
- Following an initial joint session with the Mediator, the parties usually withdraw to separate rooms. The Mediator will then visit both parties separately to explore their objectives and to seek, through the use of questioning techniques and suggestions, to facilitate a settlement. Unless specifically authorised, the Mediator will not disclose any part of his discussion to the other side.
If and when a settlement is reached at a mediation, this will be recorded in writing at the end of the session. Where legal proceedings have already commenced the agreement willl take the form of a Court Order concluding the proceedings. Each party will be required to sign the written agreement or Order, which then becomes legally binding and enforceable.