Mediation is a process whereby two or more parties agree to refer their dispute to a mediator. The mediator will assist the parties in reaching a mutually agreeable settlement that is entirely the product of their own efforts. If an agreement is not reached then the parties are then free to pursue other courses of action such as legal proceedings.
HOW DOES MEDIATION WORK
The mediator encourages communication between the parties, helping them to understand all of the issues in their dispute, to identify underlying concerns and to develop an understanding of their respective interests. The mediator will assist the parties to search for a solution to their dispute but at no time will a mediator suggest or impose a solution nor will the mediator act as a judge or arbitrator.
THE BENEFITS OF MEDIATION
- leaves the disputing parties with control over the outcome
- is flexible, giving the disputants a wide range of options to choose from
- is quick, enabling disputants to save substantial time and money
- is confidential, avoiding public disclosure of the conflict and confidential business and personal information
- can preserve or improve business and personal relationships by improving communication and understanding through non-confrontation of problem solving.
IS A LAWYER NECESSARY
Lawyers may or may not be present in the mediation as that decision is left up to the parties. It is recommended that the parties speak to a lawyer prior to the mediation to ensure that they understand their legal rights.
- Mediation works best
- where conflict threatens to break-up a successful business relationship
- where legal costs will outweigh the monetary gain, if any
- where court delays are unacceptable and the conflict threatens day to day business operations or personal relationships
- where a tailored and complex solution is needed
- where the issues in dispute are very sensitive, confidential or personal and public attention is undesirable
- where the dispute involves emotional issues; such as a family break-up.
SUGGESTED CONFLICTS WHERE MEDIATION WOULD BE USEFUL
- Family break-ups, divorce, custody, property settlements
- Estate division
- Conflicts in the workplace
- Business relationships, shareholder & partnership disputes
- Pre-trial settlement conferences
More About Mediation:
Mediation is a voluntary settlement negotiation facilitated by a neutral third party who has no decision-making power.
The hallmark of mediation is its focus on the interests (or needs) of the parties, as opposed to their positions. Interests can be:
- substantive – needs such as money, control or resources
- procedural – needs relating to the process or the way in which a dispute is resolved
- psychological – needs relating to feelings or emotions about the issue.
Interests are the driving force behind every dispute. A position is only a way of meeting those interests. Mediators try to get the parties to consider interests rather than positions. By looking for these underlying interests, parties can open up positions and create new options for settlement.
THE MEDIATION PROCESS
The mediator will typically guide the process through four stages:
- Mediator's opening statement-The mediator describes the process, establishes ground rules for conduct, reviews the agreement to mediate and confirms commitment to proceed.
- Story development-Each party gives a synopsis of the facts of the dispute. The mediator then clarifies and frames the issues in terms acceptable to the parties.
- Identifying the interests-Using questions, the mediator shifts the focus from positions to underlying interests, and ultimately formulates a goal statement incorporating all of the interests identified.
- Generating options-The parties list and evaluate options for satisfying as many interests as possible, and, thereby, for reaching a settlement.
If a settlement is reached, the parties then discuss how to formalize the terms of settlement, usually either by written agreement or a consent order.
A key step in any mediation is the selection of a mediator. As there are no universally recognized certification processes for mediators, selection must be based on each individual's particular training, experience and references.
The mediator must be impartial. He or she must have no connection with the parties to the dispute and must not have any interest in the outcome of the case. The mediator shapes the process; the parties control the outcome. The mediator:
- structures and manages the negotiation process
- establishes ground rules for conduct
- keeps lines of communication open and keeps the discussions on track
- acts as a sounding board, innovator and reality tester.
The mediator will usually assist in developing ideas for resolution but refrain from controlling this process, because the parties involved in the dispute are more capable of recognizing the essential elements of a workable, long-lasting agreement. A mediator will not usually arm-twist, or lean on one party, or suggest that a party is being unreasonable and should compromise. He or she will, however, encourage settlement and see that the merits of any proposal are tested. The mediator will also push the parties to consider the alternatives to a negotiated agreement, so they know the full consequences of walking away from a possible settlement.
LENGTH OF THE MEDIATION
The time required to mediate a dispute varies according to the complexity of the dispute. It can take less time if the parties are well prepared-in other words, they are knowledgeable about the facts and understand their underlying interests. Mediation can take longer if the parties are highly emotional, or simply need to discuss the issues at a slower pace in order to understand them more clearly. Because of the flexibility of the process, the mediator can accommodate all of these differences and move the mediation along at a pace with which the parties can be comfortable.
Individual mediation sessions are often three or four hours long. It is not uncommon for mediations, particularly those involving complex commercial issues, to be scheduled for up to a full day or more.
COMPARISON BETWEEN THE COURT PROCESS AND MEDIATION
The Court Process
- content based on legal rights and remedies
- neutral third party imposes a decision
- bound by rules and procedures
- parties assert positions
- objective is to win or prevail
- negotiation based on needs and interests
- neutral third party facilitates a decision
- procedurally flexible
- parties assert interests
- objective is get what you need, and to solve a problem