There are a number of variants of ADR, including
- hybrid processes
- early neutral evaluation
Of these, mediation is by far the most common. In short, it is a process whereby a neutral person, the mediator, seeks to assist the parties to resolve a dispute between them by agreement. The mediator has no power to impose a solution, but if the parties can be brought to an agreement, he assists the parties to draw up a settlement agreement, which is binding.
The practice and procedure of mediations is discussed in my book Building Contract Disputes: Practice and Precedents at chapter 4. The process is summarised as follows:
4-47 A mediation typically follows the following course:
- Parties exchange brief case summaries, and a day for the mediation is arranged.
- At the mediation, the mediator starts by making a brief opening statement.
- The parties then each make oral opening statements.
- The mediation then breaks into caucus, each party retiring to a separate room and the mediator shuttling between the two.
- These caucuses, perhaps with further joint meetings, continue for the duration of the mediation.
- If the mediator has been able to obtain an agreement, the parties come together and draft and sign a settlement agreement.
- If the parties have not been able to reach agreement at that point, the position depends upon whether it has been agreed that the mediator should make a recommendation. If so, the mediator may make a recommendation on the spot, or on a later day. If there is not to be a recommendation, the mediator will typically discuss with the parties why they have not been able to reach agreement, and will suggest further steps which may achieve an agreement.
4-48 In all but the most complex cases, the mediation itself typically takes place on a single day.