Imagine that you have been involved in a dispute for months. Letters have been exchanged. Each side believes they are right. Court proceedings may already have started. Then someone suggests mediation.
For many people, the immediate questions are practical ones. What actually happens at mediation? Do I have to compromise? Will I be sitting across a table from the other side all day? What happens if we cannot agree?
Mediation is much less formal than a court hearing, but it should not be treated casually. A successful mediation can bring a dispute to an end in a single day. Good preparation before that day can make a significant difference.
Written by Paul Cheuk, Solicitor
Do You Have to Try to Settle?
Mediation is a structured negotiation with the assistance of an independent mediator. The mediator is not a judge. They do not decide who is right or wrong and cannot normally impose a settlement on either party.
Going to mediation does not mean that you have to accept a settlement. You remain in control of whether an agreement is reached and on what terms.
Parties to civil proceedings are expected to engage seriously with ways of resolving disputes without a trial. However, there is therefore an important difference between being required to participate in the process and being required to settle. You may have to engage properly with mediation, but nobody can force you to accept an offer that you consider unacceptable.
Negotiation Starts Before the Mediation
The negotiation does not necessarily begin on the morning of the mediation. In many cases, the parties will already have exchanged settlement offers.
We usually suggest reviewing the case carefully before mediation and deciding what outcome would realistically be acceptable to you. This should include not only the amount in dispute, but also responsibility for the legal costs, possibility in delay of the court process, damage to commercial relationships, and the risk of enforcement.
We often observe that parties focus too heavily on one headline figure. In practice, payment dates, instalments, confidentiality, costs, or future business arrangements may be just as important.
You Still Need to Prove Your Position
Mediation is a negotiation rather than a trial, but that does not mean evidence and legal arguments become irrelevant.
If you are claiming £100,000 in damages, for example, the other side will want to know how you arrived at that figure. You may need to provide invoices, accounts, valuations, expert evidence, or calculations to demonstrate the loss. Simply saying that you believe your claim is worth £100,000 is unlikely to persuade the other side to pay it.
The same applies from the other direction. A defendant may say that they cannot afford to pay the settlement immediately and ask for instalments. The other side may reasonably ask for evidence of that financial position before agreeing to wait for payment.
We therefore suggest thinking carefully before mediation about what you may need to demonstrate, rather than simply what you intend to ask for. The evidence required for negotiation may well be different from the evidence required at trial. Sometimes a small number of carefully selected documents can make a significant difference to persuade the other side.
At the same time, disclosure should be considered carefully. Mediation does not mean that you should simply hand over every document available. What information should be provided, and when, can itself form part of the negotiation strategy.
What Happens on the Day?
The format can vary. Mediation may take place in person or remotely. In a typical mediation, each party has its own private room with its lawyers. The mediator moves between the parties and speaks to each side separately.
There may also be a joint meeting at the beginning where everyone comes together, although this is not necessary in every case.
The mediator will usually ask each party to explain its position. They may challenge assumptions and ask difficult questions. A good mediator may ask you to consider not only why you think you will win, but what happens if the judge disagrees with you.
What you tell the mediator privately will generally remain confidential unless you authorise the mediator to communicate it to the other side. This allows parties to discuss possible compromises more openly.
We usually find that clients are surprised by how much of the day is spent waiting while the mediator speaks to the other side. This is normal. Those periods are often useful for reassessing the case, considering the latest offer, and preparing the next response.
We also suggest using the mediator actively. A mediator can often help test how the other side may react to a proposal before a formal offer is made.
Who Pays for the Mediation?
The mediator charges a fee, which is commonly shared between the parties unless another arrangement is agreed. Each party will also usually pay its own lawyers for preparing for and attending the mediation.
This can still be considerably less expensive than taking a case through a full trial. The comparison should therefore not simply be between the settlement figure and what you believe your claim is worth.
We usually suggest looking at the total commercial picture. Future legal costs, management time, delay, the possibility of losing, and the risk of having difficulty enforcing a judgment all have a value. Sometimes accepting less today can make commercial sense when compared with spending considerably more to pursue an uncertain result later.
What Happens If You Reach an Agreement?
Once an agreement is reached, it is important to record the terms properly before everyone leaves.
The lawyers will usually prepare a written settlement agreement. If court proceedings have already begun, the parties may also need an appropriate court order to bring those proceedings to an end.
We often observe that the final drafting stage is where unexpected issues arise. Payment dates, tax, confidentiality, costs, releases, and what happens to the existing proceedings should all be considered carefully. If payment is to be made by instalments, the agreement should also address what happens if an instalment is missed.
Knowing When to End the Mediation
Not every mediation succeeds. Sometimes the parties remain too far apart.
There is no requirement to keep negotiating indefinitely. Sometimes it becomes clear that the parties are not going to reach an agreement that day.
However, we suggest being careful about leaving too quickly. Positions can change considerably during a mediation. An offer that appears unacceptable in the morning may look very different after the risks, evidence, costs, and practical alternatives have been explored properly.
Before ending the mediation, it is often worth asking whether there is another structure that has not yet been considered. The disagreement may be about when money is paid rather than how much is paid. It may be possible to agree instalments, security, staged performance, or another practical arrangement.
The decision to end the mediation should therefore be considered with your legal team. Sometimes walking away is the correct decision. The important thing is that it should be a considered decision rather than a reaction to a difficult point in the negotiation.
Final Thoughts
Mediation is not simply a meeting where everyone is asked to compromise. It is a structured negotiation in which preparation, evidence, timing, and strategy all matter.
The aim is not necessarily to prove that you are right. The question is whether an agreement can be reached that is better than the risks, costs, and uncertainty of continuing the dispute.
At Lisa’s Law, we assist clients before and during mediation. We assess the case, prepare the evidence and negotiation strategy, advise on offers during the mediation, and draft the final settlement terms if an agreement is reached. Proper preparation allows you to enter mediation knowing not only what you want, but also what you can demonstrate, what you can realistically achieve, and when it makes sense to settle.
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