Is Mediation Free?

Is mediation free? The short of it is: mediation can be free, but not invariably so and not for all manner of disputes.

In the UK one will find some services that are without cost to the user, others that are in part subsidised, and some that are “free” only in as much as a third party is footing the bill.

Then there are cases where a charge is made right from the start. Although 99% of the time mediation is less expensive than going to court. Do not conclude that mediation is free of charge; do not make that assumption as sometimes you will have to pay for it.

One would be better asking which type of mediation is on offer for a given dispute and who is to pay for it. A mediation at the small claims court is not the same as one in the workplace, a civil dispute of more than £10,000 and community mediation is yet another thing altogether.

While family mediation may be provided at no cost, this is contingent on meeting legal aid requirements. With a boundary dispute, for instance, you will find mediation is free, never. 

This guide sets out the case for and against mediation, how the various schemes operate and in what instances mediation is free and when it is not. 

What is mediation?

Put simply, it is a process with structure whereby a neutral third party puts people in dispute with one another come to an agreement of their own volition.

The mediator is not there to dictate terms but to steer the discussion, put positions to the test, have both sides appreciate the risk. And consider how a settlement might be put in place.

Disputes that lend themselves to mediation can be of several kinds:

• Small claims over faulty goods, an invoice left unpaid or a service disagreement.

• Workplace issues be they a personality clash, a breakdown in communications, unfair treatment or tensions surrounding a return to work.
• At community level, matters like noise from a neighbour, parking, minor antisocial behaviour or a local falling out.
• Property and boundary disputes, fence lines and access rights being in question.
• In divorce and family cases, covering child arrangements, property and finances, and how separated parents communicate.
• The commercial sphere, for partnership break-ups, debt, breach of contract or professional negligence.

For the most part the category of dispute will determine if mediation is free or if  any fee is involved.

Small claims mediation

A person issuing a small claim will find the court system the Ministry if Justice has its own Small Claims Mediation Service for those that qualify, typically claims of under £10,000.

In practice it is seen by the court user as a free or very low cost alternative to hiring a private mediator and is intended to lead parties to a settlement in lieu of a hearing. However is it really free? Remember to issue a small claim in the UK it costs between £35 – £455. 

The procedure for a one-hour small claims mediation is straightforward:

1. Mediation is put forward when both parties are amenable to it.
2. An appointment is set up by the mediator, usually by telephone and for an hour at most.
3. Rather than having everyone in a joint debate, the mediator will generally keep the parties apart and speak to them in turn.
4. He or she will look to establish what each side is after and what they expect at a hearing, and if compromise is possible and practical terms can be put in place.
5. Should a deal be done, the terms are put on record and the case is closed.
6. Failing that the matter is left to the normal course of the courts.

A comparison with an external mediator

There is no mistaking the utility of small claims mediation in court, but it does not equate to what one gets from a privately retained mediator. The in-house type will have constraints: time is at a premium, the process is for the most part standardised, there is not much room for thorough pre-mediation work and when it comes to the more intricate evidential or emotional matters, flexibility is wanting.

An outside non-court mediator is preferable in certain circumstances, say where the facts are hard and fast, or emotions are elevated, or the dispute has several possible outcomes and the parties require more than an hour to get to the heart of it. They may be better placed to protect a trading relationship. A private mediator can put in half a day or more on a case, go over position papers in advance and talk with the lawyers; their more subtle approach to bring about a settlement allows for some creative negotiating. Cost is the price one pays for that. For a small claim then, the court service is an excellent way to start, but in a more demanding case it should be viewed as a means to a streamlined settlement, not a replacement for a properly conducted external mediation.

Workplace mediation: free for the employee?  

One will often hear workplace mediation put down as free and, looking at it from the employee’s side, you would be right to think so; personal payment is not called for in an employment setting. In any absolute sense however it is not without cost. That falls to the employer, who will cover it via an external mediator.

When is it “free”?

It may well seem so if the organisation has its own mediators drawn from management or HR, or if the employer makes it part of its conflict resolution or staff wellbeing policy. It is also something that might be put in place at an early stage to head off a grievance or the risk of a tribunal.

The issue with an internal workplace mediator

While the employee is not out of pocket for anything, there are legitimate concerns. As for independence, even a fair mediator is still of the same organisation and the employee may question their neutrality. Then there is the matter of accreditation and training which is not of a uniform calibre among internal staff. An in-house mediator may only come across disputes now and again, unlike one who is used to a variety of conflicts. And perception counts; if a party regards the mediator as being of management the whole thing can be derailed before it starts. There are also confidentiality worries, that something sensitive might make its way around the organisation informally.

Why you need an external workplace mediator

In the event of a complaint of discrimination or harassment, bias, a department culture in tatters or where trust has been lost entirely, an external mediator is the stronger option, particularly with senior staff involved. They will have the practical experience and professional standing to inspire confidence in their impartiality. The downside is the expense, but employers will frequently find it less costly than to put up with attrition, an employment tribunal litigation or a protracted absence and formal grievance.

In short, the employee may not have to pay for workplace mediation but the employer does, and whether one opts for an internal or external route can make all the difference to the credibility of the process.

Even ACAS who offer a free Early Conciliation service charge for any workplace mediations.

Community mediation

This is usually to be had at no direct charge to the user from local authorities, housing associations or charities, and from independent community services that are in part funded by public or local schemes. Disputes of the following kind may be covered:

• noise from a neighbour,
• a bit of antisocial behaviour,
• parking row,
• problems with shared access,
• nuisance over the garden, pets or bins,
• or when relations between neighbours have simply broken down.

Normally one would want to intervene at an early stage and head off any formal legal action. A boundary dispute is a different matter however, and there is rarely anything free about it. While you might get community mediation without charge for a run in with a neighbour, a formal disagreement as to:

• where the law puts the boundary,
• land ownership,
• rights of way,
• adverse possession,
• property value questions

is of a more serious and technical nature. Such cases are beyond the scope of free community schemes and will call for a private mediator, surveyors and solicitors; they are therefore chargeable. Put simply, a “neighbour dispute” and a “boundary dispute” are not interchangeable. The former can be put right under a local scheme at no cost, the latter demands private funding.

Divorce and family mediation costs

In family matters the question is often asked if MIAMs come free of charge. The Mediation Information and Assessment Meeting is generally the first port of call before making certain applications to the family court, to see if mediation is appropriate and to inform the parties.

Are they free?

If you are eligible for legal aid they can be. If not, expect to be charged.

Legal aid and family mediation

What determines eligibility is a matter of financial means (capital, savings and income), the type of family issue at hand and whether you are in receipt of means-tested benefits. In broad terms a person of modest income and capital, or on qualifying benefits, will make the grade, provided the necessary evidence is put forward. Should one party qualify for legal aid it can offset the costs of the process, including the MIAM. Failing that, and where neither does, family mediation is a private expense.

The sort of things that can be mediated in a family context are child arrangements, schooling, holiday contact and how parents communicate, as well as property and financial settlements once a divorce is through. To put it plainly, family mediation and MIAMs are not a universal given; they are free only where legal aid applies.

Making the case for mediation

There is much to be said for it. It is less expensive than a protracted court battle even if you have to put money down. You can have a resolution in a matter of weeks or hours instead of months or years. And it has its flexibility in that parties can come to an understanding a court would not order. It is confidential and tends to be less of an adversarial affair, which preserves relationships in the neighbourhood or the home and is less stressful.

Legitimate criticisms

• A domineering or vulnerable party can make mediation difficult.
• You may part with your time and money and still not reach a settlement.
• It is not always as voluntary as it seems; there can be pressure to “be reasonable”.
• The quality of the mediator is not uniform in terms of training or accreditation.
• In a workplace setting an internal mediator’s independence can be in doubt.
• Some cases, such as those involving abuse allegations or where an injunction is needed, must go to court.

Conclusion 

Therefore is mediation free? Mediation is not invariably free. There are exceptions: small claims under £10,000 can be put before an in-house court service in an hour or so. An employee may not have to put his hand in his pocket for workplace mediation but the employer is out of pocket, and one has to wonder about the neutrality and training of an internal mediator. Local schemes will often provide free community mediation, but not for a boundary dispute. As for family mediation and MIAMs, they are chargeable unless you have legal aid.

But the merit of mediation is not to be found in it being without cost. Even when paid for it is, in most instances, a more proportionate and humane manner of settling conflict. So is mediation free, all the above should be clear, clear as mud? Then contact Effective Dispute Solutions so that they can guide you through your dispute journey.