What Is Mediation and When Is It Used in Dispute Resolution?

When a dispute arises, many people assume that court proceedings are the next step. In practice, that is often not the case. The court expects parties to have considered all avenues to reach a resolution before resorting to legal proceedings including Alternative Dispute Resolution.  A large number of disputes are resolved before reaching court, with mediation playing an important role in that process.

How mediation fits within alternative dispute resolution

Mediation is one of several forms of alternative dispute resolution (ADR), alongside negotiation and arbitration.

Negotiation is usually the starting point, where parties communicate directly or through their Advisers to try to reach an agreement. Arbitration is more formal, involving an independent decision-maker who delivers a binding outcome, often where this has been agreed in advance through a contract.

Mediation sits between these approaches. Taking early advice can help identify whether it is likely to be a constructive step and how it fits within the wider strategy for resolving the issue.

What is mediation?

Mediation is a structured process where an independent third party, known as a mediator, helps those involved in a dispute work towards a resolution. The mediator does not decide the outcome. Instead, they guide discussions, helping each side explore possible solutions.

The process is voluntary and confidential. This allows parties to have open conversations about the issues without the concern that those discussions will later be used in court.

Mediation can be used in a wide range of disputes, including disputes over boundaries, property, contracts, commercial litigation, property matters, nuisance claims and inheritance disputes.

When is mediation used?

Mediation can take place at different stages of a dispute. It is often used once the issues are clearly understood but before formal court proceedings begin. In some cases, it may also be suggested after proceedings have started, particularly where both parties are open to finding a resolution.

Courts increasingly expect parties to consider mediation and refusal to engage without good reason can have consequences when it comes to costs, even if a case proceeds to trial.

What does the mediation process involve?

The structure of mediation can vary depending on the nature of the dispute, but it typically involves a series of discussions facilitated by the mediator over a half day or one day period.

Each party has the opportunity to explain their position and outline what they are seeking to achieve. The mediator will then work between the parties, identifying areas of agreement and helping to narrow the issues.

Unlike a court process, mediation is flexible. It allows for solutions that may not be available through a legal judgment, particularly where ongoing relationships need to be preserved.

Why consider mediation?

Mediation is often used because it provides a more controlled and proportionate way of resolving disputes. It allows parties to retain greater influence over the outcome, rather than having a decision imposed by a court. It is also typically quicker and more cost-effective than litigation, helping to reduce both financial exposure, and disruption.

In disputes involving family members or business partners, mediation can also help maintain working relationships. This can be particularly relevant in matters such as property disagreements or inheritance disputes, where the underlying relationships may continue beyond the dispute itself.

Is mediation always suitable?

Mediation is not appropriate in every situation. Where there is a significant imbalance between the parties, or where one party is unwilling to engage meaningfully, it may not lead to a resolution.

There are also cases where a legal determination is required, particularly where there is a need for clarity on a point of law or where urgent action is needed. Even in those situations, mediation may still be considered at a later stage once the issues have been clarified.

At mlplaw, our Dispute Resolution team supports clients through all stages of a dispute, including advising on when mediation may be appropriate and helping clients prepare for the process.