BBRS Mediation Guidance

What is mediation?

A structured but more informal settlement process where an independent (to the parties) experienced mediator actively assisted the parties in working towards a negotiated agreement of a dispute or difference.

The principal features of mediation were that it:

• involved a neutral third party to facilitate negotiations;
• was without prejudice and confidential;
• involved the customer and a representative of the bank, both with sufficient authority to settle the dispute;
• was flexible, with no set procedure, enabling the process to be designed and managed by the Mediator to suit the parties, in consultation with them;
• enabled the parties to devise solutions which were not possible in a case assessment process and which may benefit all the parties.  

What is the benefit of mediation?

The mediation process offered a number of possible benefits to the parties, in comparison to adjudication:

• Speed – The mediation process could happen quickly and early on after a complaint had been referred to BBRS. The opportunity to have the dispute resolved in a shorter timeframe benefited both parties.

• Opportunity to understand each side’s perspective
  • It provided an opportunity for the customer to tell their story and the impact it had on them, directly to the bank. This would often entail a wider discussion about the dispute than those that would be relevant during the case assessment process
  • It provided the bank an opportunity to explain in a structured way how they understood the issues and to give their perspective

• Parties control the outcome
  • Having fully understood each other, the parties could develop a settlement that met their needs.
  • Each side would have to agree whether they wanted to settle and what the terms of that settlement would be.
  • This meant an agreement could cover things that could not be ordered in a case decision.

Is there a cost for the mediation?

This was part of the BBRS approach to resolving these matters and there was no cost to the customer in agreeing to mediation. 

How was the mediator appointed?

If the parties agreed to mediation, the Customer Champion would inform the Case Handler, who considering the factors of the case would appoint an appropriate mediator. Prior to the appointment, the mediator would confirm to the BBRS that they have no conflict of interests with any of the parties in the case. 

What did the customer need to do to prepare for mediation?

Once appointed the mediator would contact each party to have a preliminary discussion about the mediation and what was needed in terms of preparation. The Case Handler was also available to guide the parties through the preparation for mediation.

The BBRS Case handler would make the necessary arrangements for the mediation as required or agreed by the parties and the mediator including:

• finalising the mediation agreement, submitting it for review by the parties and ensuring its signature prior to the mediation
• facilitating agreement as to the date, venue and start time for the mediation;
• organising access to case documentation to the mediator;
• arranging for pre-mediation conference calls between the mediator and the parties individually as required.

The mediation agreement 

The agreement to mediate provided the essential legal basis for the mediation. Its signatories (the parties to the dispute, the mediator and BBRS) all agreed by signing it that the mediation was to be conducted consistent with the CEDR Code of Conduct.

The standard mediation agreement would be sent for approval to the parties as part of the preparation process for the mediation and then signed by the parties prior to the start of mediation. In any pre-mediation contact with the parties, the BBRS and the mediator would observe its terms as to confidentiality, even though the agreement had not yet been signed.

Documentation

The Case Handler would agree with the parties which documents, already provided to the BBRS, could be shared with the mediator. They would also discuss what additional documents could be provided to the mediator.

The parties could also provide to the mediator a written statement or case summary in advance of the mediation if they wished. It was not mandatory to do so.

All documentation supplied would be treated as confidential by the mediator and the BBRS and would not be circulated further without express authority.

One of the advantages of mediation was that its success was not dependent on exhaustive bundles of documents.  Bundles could usually be relatively limited in size, containing only key documents. Case summaries could similarly be quite brief and could be prepared jointly by the parties.

Who should attend the mediation?

It was important that there was one attendee from each party who has sufficient authority to negotiate and reach and sign any settlement agreement.

The parties could also ask to attend, any other support person(s) they consider necessary to facilitate settlement. This could include a colleague, family member, friend, or professional advisers.

While the mediator could not prevent parties from bringing attendees, they would discuss the number of attendees and how their attendance would facilitate settlement, with the parties to ensure balance and fairness.

Was the process in-person or virtual?

The process could be conducted in-person and/or online using videoconferencing technology, and the mediator would discuss the best way forward for the case. Preliminary engagement could also be conducted by telephone.

How does the process actually work?

It would normally involve a number of private meetings with the mediator and possibly joint meeting(s) between both the parties, facilitated by the mediator. The format would be different from case to case, and the parties did not need to meet face-to-face if they did not wish to.

The mediator would help the parties understand what the issues were, develop settlement options and engage effectively in exchanging offers for settlement. They would not however give their view on what was an appropriate settlement. The mediator’s role was to facilitate, and they would not provide either party legal or other advice. The mediator’s role was to be fair and independent, and to support both parties to participate in the process.

Mediation could take place over a number of sessions or be conducted all in one day. This would be determined by the mediator based on the parties needs. Mediation was a flexible process and could be adapted to the unique needs of the parties.

How long did mediation take?

One of the advantages of mediation was that the parties had an opportunity to agree an outcome more quickly than they would reach one under adjudication. The exact timeframes would differ from case to case, but in general:

• When mediation had been suggested by either party or BBRS, there would be a period of around two weeks for the parties to decide whether they wished to proceed with mediation
• Once both parties agreed to mediate, the BBRS would take steps to appoint a mediator as soon as possible
• The date of the mediation would depend on the parties’ availability, but the BBRS would aim to hold the mediation within six weeks of a mediator being appointed

Mediation was flexible, and these timeframes depended on the availability of and timely responses from the parties. Whatever the timeframe, the BBRS would keep both parties up to date on what to expect and what was happening next.

Was it confidential?

The process was confidential and was a side-step from the case assessment process to allow the parties to attempt to agree a settlement. For this reason, nothing said or disclosed during the mediation, would be disclosed to a Case Assessor, should the mediation not be successful.

The mediation agreement provided that what happened at the mediation was to be treated as confidential by the parties, the mediator, all individuals attending the mediation and the BBRS. The information that should have been kept confidential included the fact and terms of settlement.

There could be rare circumstances in which the confidentiality of the mediation process could not be preserved. These were set out in the Mediation Agreement.

How did a mediation conclude?

The mediation could end in a number of ways:

• by settlement of the dispute in whole or part, when all agreed matters would be written down and signed by the parties to become binding;
• by one or more parties leaving the mediation before settlement was achieved;
• by an agreed adjournment for such time and on such terms as the parties and the mediator agreed;
• by withdrawal of the mediator in accordance with the mediation agreement

If an agreement was reached, the mediator would facilitate the drawing up of any settlement agreement, normally using the BBRS template settlement agreement. Once signed the settlement agreement became a binding contract under which the customer agreed to settle their complaint in full and final settlement and the bank agreed to take some action in return. Both parties were bound by the contract, and either party could take legal action against the other if that party failed to honour their obligations, as detailed in the agreement.

Where the mediation did not end in complete settlement, the Mediator could contact the parties thereafter to see whether further progress could be possible. Many disputes which did not settle at the mediation settled later, usually as a result of what occurred or was learned at the mediation.

If settlement was not ultimately reached, then the Case Assessment process would be restarted at the point it was paused for mediation.