How Mediation Works

ART RESOLVE

THE MEDIATION PROCESS

 

  1. Pathways to Mediation
  • Contract may contain a mediation clause (or tiered dispute resolution provisions). NB Art Resolve can provide standard ADR provisions.
  • Ad hoc / voluntary mediation (at any stage pre or post the inception of formal litigation and court proceedings).
  • Court recommends or directs mediation at the case management stage.

 

  1. Practical Arrangements 
  • Parties jointly agree the identity of the specific Mediator(s).
  • Art Resolve can nominate various alternative Mediators with relevant experience for the case in hand.
  • Consideration of appointment of a co-mediator.
  • Parties and Art Resolve jointly agree the fixed time required for the Mediation, the fee, date and venue.
  • The fixed time is usually a full day (8 hours) or a half day (4 hours).
  • The fee is for the relevant fixed time plus reasonable preparation/reading in time for the Mediator. If the Mediation extends beyond the fixed time, the Mediator charges for that extra time at a pre-agreed hourly rate.
  • Art resolve can assist in locating a suitable venue for the Mediation. (Space requirements include a separate and private room for each party to the dispute and a private space for the Mediator.)
  • The Mediator’s fees and all venue costs and other related charges (e.g. for refreshments) are paid (in advance) in equal proportions by the parties to the dispute.
  • All parties and the Mediator sign a Mediation Agreement setting out the formal basis of the Mediation. If this is not signed in advance of the Mediation itself, it must be signed at the outset of the process. Art Resolve has a standard mediation Agreement (see here). Pending formal signature of the Mediation Agreement the Art Resolve Mediation Rules (see here) apply.
  • Following appointment, the Mediator will liaise with all parties to seek agreement on matters relating to the conduct of the Mediation, including the number, identities and roles of persons attending, whether or not the parties will be legally represented, the nature of any position statements and the timing and exchange of the same, agreement as to bundles of key documents to be referred to and so on. In addition, any party may speak to the Mediator on a confidential basis and appraise him/her of issues they consider pertinent and/or produce private materials. The Mediator will maintain that confidence in respect of all such private information.
  • It is essential that present at the Mediation itself are representatives of all the parties with power to agree any settlement (or with access to those that can authorise the same) and bind the parties by signing formal settlement terms (and arrangements to that effect need to be in place prior to the Mediation).

 

  1. The Mediation
  • The Mediator will have read the position statements and any supporting documentation (open and confidential) provided by the parties prior to the Mediation.
  • The Mediation can be a flexible process and so open to be agreed by the parties and the Mediator.
  • A Mediation usually commences with a joint session attended by all the parties, at which each can give a brief outline of their case and aspirations for the day, (but this can be waived if circumstances require).
  • The Mediator then speaks to each party privately and confidentially to understand their case, viewpoints, sensitivities and aspirations for an outcome and “shuttles” between them seeking to narrow down areas of dispute, open areas of compromise and agreement and facilitate discussion of options for settlement. The Mediator will not reveal anything said in confidence at such a session to another party, other than with the express agreement of the disclosing party.
  • The parties are free to raise any issues and can discuss creative routes to settlement that are wider than those available to the courts. This is especially relevant in art and culture related disputes.
  • If agreement can be reached on a settlement acceptable to all parties, then a formal Settlement Agreement will be drawn up by the parties or their respective legal representatives. (NB The Mediator will not do this as he/she is neutral and cannot draft a document that reflects the positions and interests of several parties.) The Settlement Agreement can then be signed by those legally authorised to do so for the parties. This may also involve formally agreeing to discontinue court proceedings. A Settlement Agreement of this nature is, of itself, legally binding on the parties in accordance with its terms.
  • In the event that a settlement cannot be negotiated and agreed during the Mediation, the parties can continue with other means of resolving the dispute and/or formal litigation but the Mediation itself is deemed to be “without prejudice” (and anything said or disclosed during that process is deemed non-binding and confidential).