What is mediation?
A structured but more informal settlement process where an independent (to the parties) experienced mediator actively assists the parties in working towards a negotiated agreement of a dispute or difference.
The principal features of mediation are that it:
- involves a neutral third party to facilitate negotiations;
- is without prejudice and confidential;
- involves the customer and a representative of the bank, both with sufficient authority to settle the dispute;
- is flexible, with no set procedure, enabling the process to be designed and managed by the Mediator to suit the parties, in consultation with them;
- enables the parties to devise solutions which are not possible in a case assessment process and which may benefit all the parties.
What is the benefit of mediation?
The mediation process offers number of possible benefits to the parties, in comparison to adjudication:
- Speed – The mediation process can happen quickly and early on after a complaint has been referred to BBRS. The opportunity to have the dispute resolved in a shorter timeframe benefits both parties.
- Opportunity to understand each side’s perspective
- It provides an opportunity for the customer to tell their story and the impact it has had on them, directly to the bank. This will often entail a wider discussion about the dispute than those that would be relevant during the case assessment process
- It provides the bank an opportunity to explain in a structured way how they understand the issued and give their perspective
- Parties control the outcome
- Having fully understood each other, the parties can develop a settlement that meets their needs.
- Each side must agree whether they want to settle and what the terms of that settlement may be.
- This means an agreement can cover things that could not be ordered in a case decision.
Is there a cost for the mediation?
This is part of the BBRS approach to resolving these matters and there is no cost to the customer in agreeing to mediation.
How is the mediator appointed?
If the parties agree to mediation, the customer champion will inform the case handler, who considering the factors of the case will appoint an appropriate mediator. Prior to the appointment, the mediator will confirm to the BBRS that they have no conflict of interests with any of the parties in the case.
What do I need to do to prepare for mediation?
Once appointed the mediator will contact each party to have a preliminary discussion about the mediation and what is needed in terms of preparation. The case handler is also available to guide you through the preparation for mediation.
The BBRS Case handler will 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 provides the essential legal basis for the mediation. Its signatories (the parties to the dispute, the mediator and BBRS) all agree by signing it that the mediation is to be conducted consistent with the CEDR Code of Conduct.
The standard mediation agreement will 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, BBRS and the mediator will observe its terms as to confidentiality, even though the agreement has not yet been signed.
The case handler will agree with the parties which documents already provided to the BBRS can be shared with the mediator. They will also discuss what additional documents may also be provided to the mediator.
The parties may also provide to the mediator a written statement or case summary in advance of the mediation if they wish. It is not mandatory to do so.
All documentation supplied will be treated as confidential by the mediator and BBRS and will not be circulated further without express authority.
One of the advantages of mediation is that its success is not dependent on exhaustive bundles of documents. Bundles can usually be relatively limited in size, containing only key documents. Case summaries can similarly be quite brief and can be prepared jointly by the parties.
Who should attend the mediation?
It is important that there is one attendee from each party who has sufficient authority to negotiate and reach and sign any settlement agreement.
The parties may also ask to attend, any other support person(s) they consider necessary to facilitate settlement. This may include a colleague, family member, friend, or professional advisers.
While the mediator cannot prevent parties from bringing attendees, they will discuss the numbers of attendees and how their attendance will facilitate settlement, with the parties to ensure balance and fairness.
Will the process be in-person or virtual?
The process can be conducted in-person and/or online using videoconferencing technology, and the mediator will discuss the best way forward for their case. Preliminary engagement may also be conducted by telephone.
How does the process actually work?
It will normally involve a number of private meetings with the mediator and possibly joint meeting(s) between both parties facilitated by the mediator. The format will be different from case to case, and the parties do not need to meet face-to-face if they do not wish to.
The mediator will help the parties understand what the issues are, develop settlement options and engage effectively in the exchanging offers for settlement. They will not however give their view on what is an appropriate settlement. The mediator’s role is to facilitate and they will not provide either party legal or other advice. The mediator’s role is to be fair and independent, and to support both parties to participate in the process.
Mediation may take place over a number of sessions, or be conducted all in one day. This will be determined by the mediator based on the parties needs. Mediation is a flexible process and can be adapted to the unique needs of the parties. Please raise any needs with the mediator or case handler.
How long does mediation take?
One of the advantages of mediation is that the parties have an opportunity to agree an outcome more quickly than they would reach one under adjudication. The exact timeframes will differ from case to case, but in general:
- When mediation has been suggested by either party or BBRS, there will be a period of around two weeks for the parties to decide whether they wish to proceed with mediation
- Once both parties agree to mediate, BBRS will take steps to appoint a mediator as soon as possible
- The date of the mediation will depend on the parties’ availability, but BBRS will aim to hold the mediation within six weeks of a mediator being appointed
Mediation is flexible, and these timeframes depend on the availability of and timely responses from the parties. Whatever the timeframe, BBRS will keep both parties up-to-date on what to expect and what is happening next.
Is it confidential?
The process is confidential and is 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, will be able be disclosed to a Case Assessor, should the mediation not be successful.
The mediation agreement provides that what happens at the mediation is to be treated as confidential by the parties, the mediator, all individuals attending the mediation and the BBRS. The information that should be kept confidential includes the fact and terms of settlement.
There may be rare circumstances in which the confidentiality of the mediation process cannot be preserved. These are set out in the Mediation Agreement.
How does a mediation conclude?
The mediation may end in a number of ways:
- by settlement of the dispute in whole or part, when all agreed matters must be written down and signed by the parties to be binding;
- by one or more parties leaving the mediation before settlement is achieved;
- by an agreed adjournment for such time and on such terms as the parties and the mediator agree;
- by withdrawal of the mediator in accordance with the mediation agreement
If an agreement is reached, the mediator will facilitate the drawing up of any settlement agreement, normally using the BBRS template settlement agreement. Once signed the settlement agreement becomes a binding contract under which the customer agrees to settle their complaint in full and final settlement and the bank to take some action in return. Both parties are bound by the contract, and either party can take legal action against the other if that party fails to honour their obligations detailed in the agreement.
Where the mediation does not end in complete settlement, the Mediator may contact the parties thereafter to see whether further progress might be possible. Many disputes which do not settle at the mediation settle later, usually as a result of what occurred or was learned at the mediation.
If settlement is not ultimately reached, then the Case Assessment process will be restarted at the point it was paused for mediation