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Are you frustrated by mediations where the first offer isn't made until 3.00pm?
Have you been in too many mediations where the dispute settled at 5.00pm, and you then spent the next three, four or even five hours arguing about the drafting of the settlement?
Are you concerned by mediations that go on so long that the parties are in no fit state to make decisions?
In short, have you ever thought that, yes, mediaton is great, but that surely there must be a better way?
Well, the good news is that there is another way, and if you answered yes to any of the questions above, it might be for you.
The Mediation 1st Expedited Mediation Protocol, set out below in blue, has been designed by our Senior Mediator, Martin Plowman, drawing on his experience of over a thousand mediations. It ensures that realistic offers are in play early, and that the mediation concludes at a sensible time. What's more, because we've built the Protocol by taking all the things that we know really really work in mediation, and leaving out all the bits that we know aren't so helpful, we think a mediation under the Expedited Mediation Protocol is likely to be a better mediation, with a higher chance of success.
To mediate under the Expedited Mediation Protocol simply book your mediation as normal, tell us at any time that both parties have agreed to mediate under the Protocol, and we'll take it from there. The Protocol is available for face-to-face and online mediations.
Mediation1st Expedited Mediation Protocol
1. The Mediation1st Expedited Mediation Protocol is NOT compulsory. The parties may agree to follow all or any part of it provided that:
- There are no more than two parties (multiple individuals , e.g., 1st, 2nd and 3rd Claimants, may count as one party if they have the same interests); and
- Each party is represented by lawyers; and
- The claim is for a monetary sum (or it is agreed that any settlement will consist of payment of a monetary sum); and
- There is no counterclaim (or none that is likely to exceed the claim); and
- Both parties agree that the Protocol is to apply.
In short, everyone needs to be lawyered up, and it has to be all about how big the figure on the cheque that the Claimant gets is going to be. Why? Because those are the mediations that lend themselves to the Protocol. And if parts of it work for you, and parts don't, that's fine. You can just agree to follow the bits that work for you. It's all about what works.
2. The parties' lawyers will agree the settlement documentation - subject to the settlement figure - by 12 noon on the day before the Mediation.
The mediation is just about the figure, so why not agree the rest? And, truthfully, drafting late into the evening on the day of a mediation is an accident waiting to happen. Drafting is more important than that. Better to get it done and dusted right at the start.
An agreed finishing time focusses everyone's minds. Focus is good.
Joint sessions and expedition do not go together.
Exchanging offers means no one has to go first. So that's good. Plus, whilst most mediations ultimately end in a "horse trade" about the number, if the opening offer comes with a justification (e.g., "My claim is worth £100,000, I assess my prospects of success at 60%, hence my offer is £60,000") that justification is likely to promote more realistic offers whilst focussing the negotiation constructively on the reasons for the settlement gap.
7. Once agreement is reached, the parties shall insert the agreed figure into the previously agreed settlement documentation and sign the same. The Mediation shall conclude by the agreed finishing time or (if none has has been agreed) by 4.30pm at the latest.
