Every dispute is different, but a typical Medi8 process has five stages.
1. Initial enquiry and conflict check
A party, lawyer or authorised representative makes an initial enquiry.
The enquiry should identify:
- the parties;
- their legal advisers;
- related companies or significant participants;
- the general nature of the dispute;
- important dates;
- the proposed mediation format.
This information is used to check independence, conflicts and availability.
Detailed confidential or privileged materials should not be sent until the conflict check is complete.
2. Appointment and mediation agreement
Once the parties agree to the appointment, they will be asked to enter into a mediation agreement.
The agreement addresses matters including:
- the mediator’s appointment;
- confidentiality;
- without-prejudice protection;
- the mediator’s role;
- private meetings;
- attendance and settlement authority;
- fees and expenses;
- termination of the mediation;
- recording any settlement.
The parties remain responsible for obtaining their own legal, financial, tax and technical advice.
3. Preliminary preparation
The mediator will ordinarily hold preliminary conferences with each party and its advisers.
The parties will agree on:
- the date and timetable;
- the online, in-person or hybrid format;
- who will attend;
- the information to be provided;
- the form and length of mediation statements;
- any technical presentation;
- confidentiality and security;
- how the parties expect settlement terms to be documented.
Each party should consider:
- its legal position;
- its commercial interests;
- the likely costs and risks of not settling;
- the people whose approval will be required;
- possible settlement structures;
- practical implementation issues.
4. The mediation
The mediation may involve a combination of joint and private sessions.
A typical process may include:
- an introductory session;
- opening statements or summaries;
- identification of the issues;
- clarification of relevant facts and assumptions;
- private meetings with each party;
- exploration of commercial interests;
- reality-testing;
- development of settlement options;
- negotiation of possible terms;
- drafting or review of an agreement.
The sequence will be adapted to the circumstances. The mediator may move between the parties, bring particular participants together or arrange a focused discussion about a technical or commercial issue.
Information provided privately will not be disclosed to another participant unless the mediator has permission or disclosure is required by law.
5. Settlement or next steps
Where agreement is reached, the parties and their advisers will ordinarily record the outcome in writing.
The mediator does not act as legal adviser to either party. The parties should ensure that the settlement is properly documented and that any necessary legal, tax, financial, regulatory or technical advice is obtained.
Where only part of the dispute is resolved, the parties may:
- record a partial agreement;
- identify the remaining issues;
- agree on further information or expert work;
- arrange another mediation session;
- proceed with arbitration or litigation on the remaining matters.
Where no settlement is reached, the parties retain their existing rights, subject to the mediation agreement and applicable law.
