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Benefits of mediation

BENEFITS OF MEDIATION:

Barry describes the process in the following terms:

If you had a headache and your doctor immediately prescribed brain surgery, what would you think? Common-sense would make you ask about headache tablets, a scan, the alternatives. Mediation is the first step in getting rid of your dispute-headache before going down the brain-surgery-court-proceedings route. Mediation will ensure that you decide how your conflict is settled putting you in control, rather than the court. It is always worthwhile considering mediation in the early stages of the dispute.”

Parties in dispute always have the prerogative to go to trial, however, the court has discretion to award or limit recoverable costs where one of the parties is deemed to have “acted unreasonably”; for example, making what the court views as a reasonable offer to settle which has not been accepted, or waiting until after proceedings have been issued to negotiate, or failing to make an offer to settle the claim until just before trial.

It should be noted that if you go to trial and win, you might only be able to recover 70-75% of your costs.

Just a few of the benefits of mediation are:

  • Speedy – Be it a business or a complex matrimonial dispute, mediation is quick to set up, saving time and money.
  • Cost effective – Costs are split equally between the parties in dispute.
  • Improves communication & understanding – The mediation process breaks the deadlock, helping the parties clarify the real issues and focus on possible solutions.
  • Flexible – The mediation session is informal allowing the parties to have full participation in the decisions.
  • Addresses reality –Barry’s skill is in focusing on each party’s expectations and claims, reality testing and moderating them if necessary.
  • Confidential – The mediation process totally confidential and without prejudice. (NB: financial disclosure in matrimonial issues leading to divorce  is not confidential.)

Dispute resolution

DISPUTE RESOLUTION & CONFLICT MANAGEMENT CAN BE DIVIDED INTO THREE DISTINCT CATAGORIES:

1. Private decision making and discussions between the parties:
  • Personal relationships are more important than confronting the dispute
  • Friendly, informal discussion between the parties
  • Less friendly negotiation between the parties
  • Mediation
2. Third-party intervention and decision making:
  • Management intervention
  • Arbitration
  • Judicial decision
  • Legislative decision
3. Questionable/illegal coercive pressure:
  • Non-violent psychological coercion
  • Violent physical coercion.

What to expect

COMMERCIAL MEDIATION:

Parties in dispute are understandably apprehensive and do not know what to expect at mediation. As a general rule, the day starts with a joint opening session in which Barry will explain to the parties about his role and the process the parties can expect during the day. (If parties are reluctant to meet face-to-face because of extreme tensions and animosity, the joint session can be dispensed with.)

A representative from each party will then be asked to make an uninterrupted opening statement which is their initial opportunity to air their understanding of the dispute as they see it together with what they hope to achieve by the mediation.

Barry will then go into private sessions with each party – as many as necessary – in which anything said is in absolute confidence. The aim of these private sessions is to clarify the issues and explore uncharted territory with the aim of finding common ground between the parties and possible solutions to the dispute.

The aim of the business mediation is to arrive at an amicable settlement between the parties within an eight-hour mediation day but, if necessary, to adjourn the mediation and reconvene a few days later which gives the parties time to reflect on offers made, if any, and the position of the other side.

When settlement is reached it is formalised by way of a legally binding and enforceable document, agreeable to all the parties. The parties and their legal representatives each get a signed and dated copy.

MATRIMONIAL MEDIATION:

By necessity, the process takes place over a longer period of time.

An initial 2 hour no-commitment meeting takes place between Barry and the couple in which the main points of issue are discussed and a plan of action is agreed. If everyone is in agreement to move forward, subsequent meetings follow between Barry and the couple and, if necessary, their professional advisers. The purpose of these meetings is to further clarify the issues, verify and establish individual financial positions and explore points of agreement.

As details are nearing finalisation, a joint meeting will take place between the couple, their advisers and Barry.

In between meetings with the couple, Barry will keep the professional advisers informed of any developments and mutual points of agreement in the form of succinct reports. It should be noted, that these reports are not agreements in their own right and are merely presented to the professional advisers to aid them in drafting documents for submission to the court.

MEDIATOR’S ROLE:

  • To guide the discussions.
  • To act as peacemaker.
  • To act as conciliator.
  • To clarify the issues.
  • To act as devil’s advocate.
  • Not to act as judge or jury.
  • Not to point out the strengths and weaknesses of each party’s legal position.
  • Not to form a view or impose a decision on the parties.
  • Not to give advice but to point the parties to possible sources of information.
  • Not to offer counselling in matrimonial disputes.

Chances of settlement

WHAT ARE THE CHANCES OF SETTLEMENT?

To settle or not settle is ultimately up to the litigants. But by keeping everyone talking – directly or indirectly – most of Barry’s mediations end in settlement.

Commercial financial disputes:

Subject to complexity, Barry aims to facilitate agreement between the parties within an 6-8 hour mediation day. In some instances, however, it might be necessary to adjourn the mediation and reconvene a few days later. This gives the parties time to reflect on any offers tabled and the position of the other party.

Of those disputes that do not settle on the day, agreement between the parties tends to follow within days, certainly within weeks. Of course, there are some parties who will never agree and going to trial is the only way forward.

Non-financial civil conflicts: 

Barry aims to facilitate agreement between the parties within a 3-6 hour mediation session.

Matrimonial disputes: 

Because divorcing or separating couples inevitably come with history and emotional baggage, matrimonial mediation statistics demonstrate 60-70% of couples reach settlement, 15-20% agree partial settlement and 5-10% do not settle.

As a general rule, high-value matrimonial disputes necessitate a number of 1½-2 hour meetings followed by a final mediation session involving the couple and all their professional advisers.

Barry’s role in matrimonial disputes is not to offer family guidance or marriage counselling but to help the couple divide up their assets as a precursor to divorce, thus saving on legal fees. Barry provides a non-contentious, non-judgemental environment for the couple to move forward.

What is the cost?

COMMERCIAL:

All fees are negotiable.

(As a guide and for illustration purposes only, the following are based on a small commercial dispute valued up to £25,000.)

Full-day (up to 8 hours):

  • 2 parties – £525.00 per party
  • 3 or more parties – £495.00 per party

Half-day (up to 4 hours):

  • 2 parties – £425.00 per party
  • 3 or more parties – £395.00 per party

Fees are payable seven days in advance of the agreed mediation date.

For small claims up to £25,000, all hours over the agreed full or half day mediation session are charged at £225.00 per hour, divided equally between the parties.

On the day, in the event that the parties decide to adjourn the mediation session, a flat fee will be agreed to reconvene the mediation at a later date. (As a general rule, the reconvened mediation will ideally take place within days, but certainly within weeks, of the adjournment.)

The above rates cover all preparation, the mediation and up to 1½ hours of post-mediation follow-up, if necessary. 

The cost of meeting facilities, catering, travelling expenses and any other miscellaneous items is split equally between the parties.

CIVIL:

The cost to mediate a small non-financial dispute – for example, troublesome neighbours – is cheap and flexible.

As a general guide, this type of dispute can normally be resolved in 3-6 hours. An attractive cost-effective “all-in” price, split equally between the parties, is available.

MATRIMONIAL:

Matrimonial conflict is fundamentally different from a commercial dispute.

Barry specialises in complex high-value matrimonial disputes concerning apportionment of assets and negotiation of any future financial commitments and obligations.

Barry suggests an initial ”no commitment” 2 hour substantive meeting, involving the couple’s solicitors, if necessary, to cover the main issues and to agree a plan of action. The cost of this meeting is £500.00 split equally between the couple.

If the couple is happy to proceed and appoint Barry as Mediator, there are two payment options available:

Option 1 – Flat rate fee of £3,750 split equally between the couple, covering up to 14 hours of work; for example:

  • Up to 6 hours of pre-mediation work including reading, communications and pre-mediation meetings.
  • Up to two substantive mediation sessions of up to 8 hours in total.

Following the final mediation, the couple’s solicitors will receive an open interim financial statement together with a legally privileged interim summary of mutually acceptable proposals to assist them in completing the divorce paperwork.

If necessary, up to 1½ hours post-mediation follow-up time is included at no extra charge.

Additional time is charged at £250.00 per hour.

Option 2 – £275.00 per hour:

Following the initial £500.00 “no commitment” 2 hour substantive meeting and Barry’s subsequent appointment, the couple will be charged £275.00 per hour split equally between the couple, subject to an agreed budget.

As with option 1, the couple’s solicitors will receive an open financial statement, together with a legally privileged summary of mutually acceptable proposals following the final mediation.

Mediation feedback

DOES MEDIATION WORK? 

Barry consistently achieves an above average annualised settlement rate. If settlement is not reached on the day, and if appropriate, Barry will continue working and liaising with the parties to help break the log jam and keep everyone talking. In Barry’s opinion: “As long as the parties communicate, there is always a chance of settlement.

The following are a small selection of feedback received post-mediation:

• “… the Mediation was ultimately successful within a very reasonable time-scale and in a dispute where the parties appeared at the outset to be firmly entrenched and set upon a day in Court. A very positive experience…”

• “I felt that you employed a good strategy…which bore fruit as it brought both parties closer together quickly in terms of settlement figures. Knowing the character of our opponents, I think the fact that you drew them into settling the matter at all is a good endorsement of your skills on the day!”

• “Your suggested solution to this impasse was nothing short of brilliant! ”

• Again, thank you for your professional approach – mixed with a lot of common sense – that made us all see the reality of the situation.”

• “This was just about the most contentious case I have had to deal with; the chances of agreement were almost non existent…very well done indeed!”

• Both legal teams were amazed how you were able to move the Parties from intransigency to accommodation and compromise…”

• “…Most professional… A pleasure to work with.”

• “You were extremely fast in focusing in on the key issues …while maintaining a flexible approach.”

“While the case did not settle, it must be said that this was in no way a reflection of you, Barry, or your efforts.

• “…a first class non-judgemental listener…”

• “Your easy manner made you very approachable, having the right temperament which developed rapport, empathy and trust with all the parties right from the outset.”

• “…unflustered when tensions rose.”

• “…You have a sharp clear analytical mind and a practical approach to problem solving.”

• “You did an outstanding job… I was personally very impressed with your professionalism in dealing with the parties and your ability to digest what was a large amount of information in a very short period of time.”

• “I want to express my appreciation for your Herculean efforts in bringing the parties together in what can only be described as an extremely complex and convoluted situation.”

• “Thank you for a job very well done. This case seemed intractable. Your skill and tenacity managed to bring about a settlement which, in my opinion, few mediators could have pulled off.”