The advantages of mediation
1. Because mediation is focused on solving the problem through discussion and listening, it sometimes reduces the conflict involved in the disagreement. This can be really useful if you might still see each other. Going to court often makes the conflict worse.
2. It is usually much quicker than going to court. It can take up to a year or more for your case to be heard by a judge. You can usually start mediation within a few weeks, and usually people are able to reach an agreement that day.
3. It can be much cheaper than going to court, even if you don’t have a solicitor to help you. The mediation fee is sometimes cheaper than the court fee. Mediation offered by the court to people involved in a small claims case is free!
4. It is usually less stressful than learning about the law and doing all the things you need to do in a court case, particularly if you are doing it by yourself/without a solicitor.
5. You are more likely to actually receive the outcome (sum of money, apology, change of practice, etc) that was agreed to in mediation than you are to receive the outcome ordered by the court. That is because people usually keep to mediation agreements. They sometimes don’t comply with court orders, which can mean you have to take another court claim to enforce the order the court made.
6. The discussions are private between you, ‘the other side’ and the mediator, and any agreement you reach is confidential.
7. Mediation allows for creative and flexible ways of solving the problem. This might involve one of you paying the other money, but equally you may agree for one side to apologise to the other, or change their process so that the same thing doesn’t happen to someone else.
8. If you are already involved in a court case, offering to mediate can reduce the legal costs you may have to pay at the end of the case. Please read our guide to legal costs in a small claim or fast-track case.
Mediation is where you use a trained mediator to help you reach an agreement with the other side in your legal dispute. The mediator helps both sides to focus on the practical and legal issues that need to be sorted out.
For legal mediation to be successful, usually both sides have to be willing to listen to the other’s point of view, and to work together to find a solution. Being willing to compromise a little is important too.
Mediation is very flexible. What it looks like and how it works can vary depending on the needs of the people involved.
Sometimes you meet with the mediator face-to-face, but increasingly mediation is offered over the phone or online via video call. In the mediation service offered free to people involved in a small claim, the mediation is limited to one hour and is by telephone, with the mediator speaking to each side separately.
In other types of mediation, you usually meet with both the mediator and ‘the other side’ in your dispute at the same time. Sometimes you can meet with the mediator separately, and they go between the two sides to help you reach an agreement you are both happy with. See How does civil mediation work? for more details.
The mediator helps you to consider different possible ways to solve the problem and supports you to discuss what might be a fair outcome for you both. They will not take sides or decide what is fair for you - they are there to help you reach an agreement that you think is fair.
Mediation works best when you are well prepared for it. See How to prepare for civil mediation.
Mediation for a civil legal problem is usually voluntary, something both sides have chosen to do. This is important, as to come to an agreement, both sides usually have to want to resolve the problem. However, the Government has announced that mediation will be compulsory for people involved in a small claims case. This will come into force sometime in spring/summer of 2024 for small claims begun online. No date has yet been set for other small claims.
If you come to an agreement using mediation, you can make the agreement ‘legally binding’ - this means that both sides must stick to it. If one doesn’t, the other side can take them to court. You can make your agreement legally binding by using a settlement agreement (or if the case is already progressing through the court system, you might use something called a Part 36 offer or Tomlin Order). Once the agreement is signed (or you have both verbally confirmed that you agree to it) it is legally enforceable. Mediated agreements are usually stuck to, which means that you do not have to take a separate legal action to ask the court to enforce it, as can happen with court orders.
If the other side has more power than you do, it might be better if you have someone on your side, such as a solicitor or a trusted friend, who can talk with them on your behalf. You can also have a supporter or legal representative in the mediation with you. Having said that, many mediators would argue that a good mediator will be able to manage a power imbalance. If this is something you are concerned about, discuss it with the mediator before you commit to using them.
Remember - you don’t have to come to an agreement. If the other side is not offering something you feel comfortable accepting, you can still go to court.
What is the difference between using a solicitor and a mediator?
A solicitor is a legal expert who will give you legal advice and prepare court documents for you. They can also negotiate with the other side to reach an agreement. The solicitor represents only you – they are ‘on your side’.
A mediator helps both sides to identify ways of solving the various issues in the disagreement. They are neutral and don’t take sides. Mediators are experts in managing discussions and negotiations with people on different sides of a disagreement.
Mediators cannot advise you about whether the agreement you reach is what the court would consider fair or reasonable. But, they can give you general legal information on the typical levels of award in your kind of case.
Some mediators are also qualified solicitors but they can only play one role - solicitor or mediator – and not both at the same time.
Impact on time limits
Using mediation doesn’t change the time limits for starting your legal case. Make sure you know when you need to have started your legal case by and don’t miss it because you are focusing on mediation. Some time limits are long, such as 6 years to claim for a service or product you didn’t receive. But others are much shorter. For example, the time limits for taking a claim of discrimination in the county court is 6 months. You can begin legal proceedings so as not to miss the time limit and still use mediation while your case is waiting for a judge to look at it. Find more detail on the limitation period for small and fast-track claims.