Frequently Asked Questions Q. What is mediation? A. Mediation is a voluntary, "without prejudice" and confidential process and this is recognised and recorded in the terms of a Mediation Agreement which the parties and the mediator sign prior to the start of the process. This Agreement provides that nothing that takes place at the mediation can be referred to at a later stage in Court or arbitration proceedings if the parties fail to reach a settlement. The Mediator can't be called by either party to give evidence, nor to produce any notes that he may have taken. It also states that the process is not binding unless an agreement is reached and a settlement agreement is signed by the parties. Q. Isn't that the same as arbitration? A. No. Unlike litigation, the process is completely flexible and the mediator determines how best to proceed. He will take into account the issues to be addressed, the psychology of the parties and their advisers, and the "mood" of the meetings. Q. What happens in a mediation? A. The mediation process does not follow a strict pattern. The mediator will generally begin by holding a joint session with the parties and their advisers at which he explains the mediation process in general terms and emphasises the confidentiality of the process. He will take particular care to stress that matters raised before him by one party will not be communicated to the other without the express consent of that party. Usually, each side is then given an opportunity to outline the main issues as they see them, and to explain their own particular position. This helps everyone understand the main issues and helps them to analyse their risks effectively at a later stage. Because lawyers have been involved as intermediaries previously this may be the first time that the parties themselves hear their opponents position at first hand. Usually, the mediator will then have private sessions with each party in turn during which it will be his objective to build up a rapport with the parties and quickly to establish their confidence and trust. During these individual sessions, the mediator will act as Devil's Advocate and rigorously question the parties in an attempt to determine the strengths and weaknesses of their arguments, and how they think the other side will perceive them. How do they view the other sides strengths and weaknesses? The mediator has to try to make the parties fully aware of the consequences if a settlement is not reached. By the end of the first individual sessions, the Mediator should have a very good idea of the real issues in the dispute - not merely the parties' "positions", but their interests and needs. By exploring these in considerable depth, the mediator will seek to find a basis upon which the parties are able to move towards each other to reach a settlement. If the parties are able do so, terms of settlement or a settlement agreement, will be drawn up with the mediator's help and this will become legally binding upon the parties when it is signed. Q. Does it work? A. Of the ADR methods available, mediation is the one most often used in practice and from a consideration of the published statistics in the UK and elsewhere in the world, boasts a success rate of more than 85%. Q. How long does a mediation last? A. The mediation process rarely exceeds two days. Q. How long does it take to set up? A. A mediation can be set up very quickly - sometimes days rather than weeks or months. Q. What happens if we don't reach a settlement? A. Even where mediation does not achieve a successful resolution of the dispute, the parties can still achieve significant benefits under the new Rules. A skilled mediator will focus the minds of each party on the relative strengths and weaknesses of the cases. This enables the parties, with the help of their lawyers, to more accurately consider dropping weaker contentions and making formal offers pursuant to Part 36 of the Civil Procedure Rules 1999, which might produce very significant cost advantages. Q. How much does it cost? A. The Mediator's fees are based on the amount of time spent at the mediation sessions and in preparation. The latter will depend on the number and complexity of the papers submitted by the parties before the mediation hearing. The Mediator's fees are shared equally between the parties. Further details will be supplied on request. Q. Who is Brian Eagles? click here for a full c.v. A. I have been active as an accredited CEDR mediator since 1993 and a Court Appointed Mediator of the Central London County Court since the inception of the Lord Chancellor's pilot scheme in 1997. Coupled with my experience as a solicitor for very many years in all areas of the entertainment and media industries and intellectual property generally, I believe that I am uniquely qualified to assist the parties, who have a dispute in those areas, to reach a resolution by mediation. I would therefore invite you to bear my qualifications in mind when you are considering the appointment of a mediator.