Gary
Hello and welcome to the Howes Percival podcast where today we're discussing mediation. I'm Gary Pitt, a Partner in the Commercial Dispute Resolution team at Howes Percival in Leicester.
Victoria
And I'm Victoria Sandell, a partner in the same team in Cambridge.
Gary
So today, like I said, we're discussing mediation. Well, what is it? What does it do? How is it beneficial to you? Throughout this podcast, we will explain what mediation is. We will explain why you ought to know about it, why it's such a hot topic at the moment, and how we and the team at Howes Percival can help you. We will also explain how we can help you specifically if mediation is on your horizon at the moment.
Victoria
So what is mediation? When people think about disputes, they often think about things becoming very formal and costly very quickly. Lots of long letters going back and forth and entrenching of positions. Mediation offers a different route, one that focuses on resolution rather than confrontation. At its core, it's a structured conversation.
It involves an independent third party, the mediator. Their role in that is not to decide what's right or wrong, but they're there to help the parties talk, listen, and explore possible solutions. The aim of everybody on the day is to reach an agreement that everyone can live with. As I say, it's not something that parties are going to come out with a decision. It's not about winning or losing.
The mediator can't impose an outcome and the parties are in control of the process and the outcome.
It works in practice is that the parties agree to meet, they're often in separate rooms and the mediator might shuttle between the rooms to try and assist in those negotiations. It might involve some joint discussions as well as private conversations with each side. Everything is confidential.
And if an agreement can be reached it's recorded in writing so that the parties can action that going forward.
Gary
So why is mediation such a hot topic at the moment and why are we talking about it? There's a couple of things that factor into this. Firstly, the courts, as you've probably noticed, are massively under‑resourced and are time poor. Part of that means that the reality is times to get the matter to trial. I don't know what you're seeing at the moment, Victoria, but I think any claim we issue, I'm saying to clients, you're likely to be 18 months, 24 months before you're looking at a final trial.
Victoria
Absolutely, that's the same for the county courts and to a lesser extent but still in the High Court too.
Gary
So really there's massive delay baked into the system. Mediation is a flexible process, gives the parties much more control over timing and much more control over their costs as well. So if you were to agree with a litigation counterparty that you were going to mediate, the reality is that could probably happen within a month, maybe sooner if the wind's behind you on that.
Those issues with the court system as it currently stands mean that parties are looking at what's known as alternative dispute resolution more widely anyway, of which mediation is probably the most well‑known and most utilised version.
On top of that, the courts are trying to help people with that decision as well. There is a move to encourage parties to mediate. There is also a move to actually force parties to mediate. There's been a run of case law, which I won't bore you with here, but basically the idea of mediating is being baked into litigation as it moves forward.
Smaller matters in the county court, you're basically getting mandatory mediation appointments and I would expect in reality that by the end of the decade we'll be talking of something akin to mandatory mediation right across the board.
What that looks like at the moment is that courts are really encouraging parties that if they refuse to mediate they'll be punished heavily on costs at the end of a trial. Even if they win and they've refused to mediate, they will see that their recovery of costs will be quite heavily impacted based on that decision.
Victoria
And that's an interesting point as well, isn't it, Gary? Because it can work two ways. You might have people who are tick‑boxing and have to agree to mediate. And then you get people who perhaps wouldn't have agreed to it before. Those rules, as you say, are coming in. But once they're there on the day, they can be moved somewhat.
Gary
Yeah, I think part of the process and what's helpful is because it's so much less formal than court proceedings, even if you have got people who are there purely to go through the motions, you do have an opportunity to speak to them directly. It's not going through the filter of instructions, long letters, or formal pleadings.
You get the opportunity during that mediation to talk directly to the other side, director to director, litigant in person to solicitor, whatever it may be, and impress on them points that might otherwise get lost.
Even if they are there purely to tick the box, if you control the mediation well and are well‑prepared, you can make more progress than you would expect.
Victoria
Yeah, absolutely. Something we haven't touched on is the success rate of mediations. They're incredibly successful across the board. There are figures putting it around the 80% mark that settle either on the day or shortly thereafter. So as you said earlier, Gary, it's the most well‑known and perhaps the most successful form of dispute resolution outside of the courts.
Gary
Yeah, and often there's pressure that a mediation should settle on the day. Actually, many don't, but they settle within weeks because information has been exchanged and positions soften.
When people are able to talk more freely, they often realise they aren't as far apart as expected, or that there's a route to settlement that hadn't been considered.
It might not all be wrapped up in a single day, but very often mediation is key in unlocking that eventual settlement.
Victoria
Absolutely. And there's varying degrees of success too. Even a narrowing of issues is still a successful day. That can put you on track to settle before trial and avoid significant costs.
So how can mediation help you? When you're in a dispute, obviously Gary and I are very interested in the legal points, but it's also about the impact on time, energy, business and personal life.
Mediation brings practical benefits. It's less about legal arguments and more about helping parties move forward. Benefits include preserving relationships, saving time and costs, and allowing flexible outcomes a court simply can't impose, such as apologies. Sometimes those things go a long way.
Gary
I think that's entirely right. Court judgments are binary, but mediation allows flexibility, apologies, non‑disparaging remarks, media statements, future working relationships, asset transfers - all things a court wouldn't order but which can unlock a dispute.
Victoria
Absolutely. Whether you're in arbitration or court proceedings, you lose control. Mediation keeps control with the parties. While there are costs involved, they pale in comparison to trial costs if settlement is reached.
Gary
And it's not just money, it's time. Trials take decision‑makers out of the business and can be personally draining. Mediation is far more relaxed and often avoids that pressure.
Victoria
Yes, absolutely. I've only ever had one client say they enjoyed the witness box.
Gary
There was probably something going on with them that needed looking into.
So how do you prepare for mediation? I like to discuss a few exercises with clients beforehand - best and worst alternatives to settlement, marker offers, and understanding what really drives the other side.
Gary
So that was a bit of an introduction to the world of mediation. If you'd like more information, you can find contact details for both Victoria and me in the podcast description or follow us on LinkedIn.
Victoria
And hopefully you’ll find me there too. Thanks very much for listening and good luck with any disputes you have going on, and do bear mediation in mind.
Gary
Absolutely. Thank you very much.