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Q: Do I have to have the Mediation Guarantee?
A: No. It's an option for those that want it, that's all.
Q: Is it binding?
A: Yes. It's a decision made by an independent arbitrator appointed to resolve the dispute as an alternative to taking the matter to court. The Arbitration Act 1996 makes the decision of that arbitrator enforceable in an English court.
Q: What's guaranteed about it?
A: Only that the Arbitrator will decide which of the closing offers made at mediation should prevail. As the decision is binding on the parties, a result is guaranteed.
Q: Who is the Arbitrator?
A: Richard O'Sullivan, a barrister and arbitrator at 1215 Chambers, 1 Fetter Lane, London. Richard worked together with us to devise the Mediation Guarantee. He 's also a mediator on our panel.
Q: Is the Arbitrator independent?
A: Totally.
Q: On what basis does he make his decision?
A: If you want the full technical answer, the Arbitrator acts as amicable compositeur applying the principles of ex aqueo et bono. Which is basically a lawyer's way of saying that he will pick the offer that seems to him to be the fairest and most equitable in all the circumstances of the case.
Q: Do we get written reasons for the decision?
A: Yes, within 21 days you will have a decision with summary reasons. But not a full reasoned judgement like you'd get in court. You want that, you go to see a judge!
Q: Does the fact that the parties have signed up to the Mediation Guarantee mean that the parties will hold back on their best offers at mediation, thereby undermining the mediation process?
A: Quite the reverse! The Arbitrator will pick whichever of the offers seems to him the fairest and most equitable, so the parties have an extra incentive not to hold back on the offers they make. The better an offer, the greater the chance that the Arbitrator will prefer it over the other side's offer. Which in turn means that where the Mediation Guarantee is in force, the parties are likely to make better offers, and settlement at mediation is more, not less, likely.
Q: Why can't the Arbitrator simply give his own decision as to the right result, ignoring the parties' offers?
A: That's what happens in most MedArb, but we just think that would undermine the Mediation process, not support it. The parties might hold back their best offers, in case those influenced the arbitrator to make a less favourable decision. At mediation1st we are mediators, and we think that a negotiated settlement is usually preferable to an imposed decision, precisely because both sides have agreed to it. Which is why we designed the Mediation Guarantee to be a way of guaranteeing a resolution that doesn't undermine the mediation process.
Q: But there's a risk that the Arbitrator may pick the other side's final offer?
A: Absolutely. But, consider this. If the Mediation doesn't settle, without the Mediation Guarantee the case will probably end up in court. Where, since all litigation carries risk, there is a chance that the outcome might be bad. Perhaps really bad. Whereas if the Mediation Guarantee is in place, the worst that can happen is that the Arbitrator prefers the other side's final offer. Which probably won't be anywhere near as bad as if the case goes against you in court. In fact, if you make a reasonable final offer, and the Arbitrator still prefers the other side's final offer, the odds are that their offer will have been a pretty reasonable offer, and nothing like as bad as if the case went against you in court. The Mediation Guarantee is actually a way of reducing risk.
Q: What if I know that I am going to approach the mediation commercially, but I'm worried that the other side won't?
A: That might be just the kind of case in which to suggest signing up to the Mediation Guarantee. If you know that you will make a reasonable offer, and you fear the other side may not be as commercial, that should increase the prospects of the arbitrator picking your offer.
Q: What if I don't want a guaranteed result from the Mediation? What if I think going to court might be right for me?
A: That's fine. The Mediation Guarantee is optional. If you don't want it, you don't have to sign up to it.
