Mediation is a form of what is commonly referred to as Alternative Dispute Resolution, or ADR. It is a means whereby the parties to a dispute work together, assisted by a neutral third party, to come to an agreement which is mutually acceptable.
Choosing to talk to each other
Mediation is an entirely voluntary process, although increasingly the courts are expecting parties to have at least attempted to mediate their dispute before resorting to a trial to resolve their differences. It is also very successful – over 70% of disputes where the parties agree to mediate are settled successfully. It is commonly used in a wide variety of disputes including family issues, marital breakdown, commercial and contractual problems or difficulties in the workplace or school.
What does mediation involve?
The process itself is entirely straightforward. Generally, the parties will have sent the Mediator documents outlining the nature of the disagreement, and their position. They will then meet somewhere which is acceptable to everyone involved, and in which each can feel comfortable.
Usually the session is begun with a round table in which the Mediator introduces himself and the process and describes how the day might proceed. The session will then begin in earnest and may include round table sessions with everyone present or a succession of private sessions with only one party talking to the mediator.
It may also involve a mixture of both – no two sessions are quite alike. Usually the sessions last half a day, although this is driven by the complexity of the issue in dispute.
When should mediation be considered as a way forward?
Mediation can be entered into at any stage during the dispute process and any settlement reached is legally binding once it is put in writing and signed by the parties.
Also the nature of the settlement reached is one which will be acceptable to both parties – there are no winners and losers in mediation and the solution arrived at may well include terms that are simply not available to a court. This may be particularly important if there is a need to maintain an ongoing relationship between the parties; for example within a family or community or between business associates.
Perhaps because of their involvement in identifying a settlement, studies have shown that the rate of compliance with the settlement is very high and so, while the agreement is legally enforceable, recourse to proceedings for recovery is very rare.
How is mediation different?
The key feature of mediation when compared either to litigation or to some other forms of ADR is that it is controlled entirely by the parties themselves. Not only do the parties choose to enter into mediation, but they also retain control over the process throughout and they elect the terms of the settlement. The Mediator is not a judge or an arbitrator – he or she will not weigh the arguments of each side and then declare a winner and dictate the terms of the settlement.
Perhaps mediation’s most attractive features are speed and cost. Generally speaking, a mediation session can be arranged at short notice – generally within a couple of weeks. This compares very favourably with the amount of time that parties can expect to wait before their case comes before a court. This speed can be very important to cases involving family members or small businesses with narrow margins.
Mediation is entirely confidential. With the exception of cases involving children, most court proceedings are open to the public and may even be reported in the press. This is not the case with mediation which is conducted between the parties entirely behind closed doors. Also, the parties enter into an agreement which ensures that nothing said behind those closed doors is later relied upon by one party without the permission of the other.
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