What is Mediation?
What is Mediation?
Mediation is a facilitative and confidential process in which a mediator assists parties to a dispute to attempt on a voluntary basis to reach a mutually acceptable agreement.
What is a Mediator?
A Mediator is one who assists parties to reach a voluntary agreement to resolve their dispute whilst acting at all times in accordance with the principles of impartiality, integrity, fairness and confidentiality.
Mediation V Arbitration/Litigation
Arbitration is almost akin to litigation as both involve full legal discovery, witness cross examination and senior legal representation resulting in a lengthy process which is expensive, confrontational and adversarial. The arbitrator or the judge will decide who wins and who loses.
- In Mediation the parties remain in control.
- It is non adversarial.
- It is speedy.
- It is Confidential.
Everything which is discussed during the mediation, and any documents prepared especially for the mediation cannot be used by any party outside of the mediation process. The purpose of confidentiality is to provide a setting in which the parties can discuss the facts and issues openly, without fear that what has been said may be used against them outside of the mediation. The ability to speak openly often leads to solutions.
The Mediation Process
A typical mediation has several distinct phases.
In the first phase, the joint or plenary session, all parties and the mediator are present. The parties may choose to have additional persons present, such as legal advisors. The parties present their view of the facts. It is critical for the parties to personally tell their stories and be heard by the opposing party and advisors.
If the parties listen carefully, they are likely to learn that the opposition’s perceptions are starkly different from their own. Becoming aware of these major differences in perceptions of the events which led to the dispute can be extremely beneficial.
Typically the parties will then break into separate rooms for a caucus session where the Mediator will visit each party in turn and listen and understand their views.
In some disputes emotional issues are a major and divisive component. Unless the emotional issues are addressed during the joint session and explored during the caucus sessions, the dispute may not settle.
The parties will usually then meet in plenary session again and agree certain matters and also agree on the issues that require resolution. Further discussion will take place on these issues and the process can be repeated several times until agreement is reached on all matters.
The legal advisors will then be instructed to draw up an agreement which is signed by the parties.
What is the Best Timing for Mediation?
The best timing for mediation is as early in the dispute as possible after the parties and lawyers have a very good handle on all of the factual and legal issues. Preferably the mediation should take place before expensive discovery. However Mediation is always an option even if court proceedings have commenced.
The Need for Commitment to Closure
Many disputes are fueled by emotion, anger and pain rather than the desire for settlement. However, the closest most parties will come to justice is through settlement on terms that they help achieve.
The mere desire to settle a dispute is not enough. A successful mediation requires commitment. If all parties and counsel commit to resolving the dispute, there will be a settlement. When all the ingredients are present, it works exceptionally well.
The Mediation Bill 2012
The Mediation Bill makes it obligatory for Solicitors and Barristers to advise a client -
- To Consider using Mediation as an alternative
- Of the likely costs involved in litigation including opposing cost
- Of the likely time involved in litigatio
- Of the enforceability of a Mediation Agreemen
- That the courts may well insist on Mediation
- Of Names and Addresses of Mediators
Clients will be obliged to confirm that the above information has been supplied.
How to Choose a Mediator
A mediator must be qualified and experienced in mediation and dispute resolution.
For Commercial Mediation a business background is essential.
The Mediator must be independent and acceptable to all parties.
Availability is also a key issue as unnecessary delays can often fuel emotions.