Mediation

What is Mediation

This is a form of Alternative Dispute Resolution (ADR). It is a way of resolving disputes between two or more parties. A third party, the Mediator assists the parties to negotiate their own settlement.

In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all parties agree that the mediator may do so.

Mediation has a structure, timetable and dynamics that ordinary negotiation lacks. The process is private and confidential. The presence of a mediator is the key distinguishing feature of the process. They may be no obligation to go to mediation but in some cases any settlement agreement signed by the parties to a dispute will be binding on them. Mediators use various techniques to open or improve dialogue between disputants aiming to help the parties reach an agreement (with concrete effects) on the disputed matter.

Much depends on the mediator’s skill and training. The mediator must be wholly impartial. Disputants may use mediation in a variety of disputes such as commercial, legal, diplomatic, workplace, community and family matters. A third party representative may contract and mediate between parties.

Why Choose Mediation

Several reasons exist for choosing mediation over other channels of dispute resolution:

Parties to a dispute may choose mediation as a less expensive route to follow for dispute resolution. While a mediator may charge a fee, comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or filed in court may take months or even years to resolve, a case, at mediation usually achieves a resolution in a matter of hours. Taking less time means spending less money on hourly fees and costs.

Mediation offers a confidential process while court hearings of cases happen in public, whatever happens in mediation remains strictly confidential. No one but parties to the dispute and the mediator(s) know what has gone on in mediation forum. In fact, confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators will actually destroy their notes taken during a mediation session once that mediation has finished. The only exception to such strict confidentiality usually involves child abuse or actual threatened criminal acts.

Mediation offers multiple and flexible possibilities for resolving a dispute and for the control the parties have over the resolution. In a case filed in court, the parties will obtain a resolution, but a resolution thrust upon the parties by the judge or jury. The result probably will leave neither party to the dispute totally happy. In mediation, on the other hand, the parties have control over the resolution can be unique to the dispute.

Often, solutions developed by the parties are ones that a judge or jury could not provide. Thus; mediation is more likely to produce a result that is mutually agreeable, or win/win, for the parties. And because the result is attained by the parties working together and is mutually agreeable, the compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.

The mediation process consist of a mutual endeavor unlike in negotiations (where parties are often entrenched in their positions), parties to mediation usually seek out mediation because they are ready to work toward a resolution to their dispute. The mere fact that parties are willing to mediate in most circumstances means that they are ready to move their position. Since both parties are willing to work toward resolving the case, they are most likely to work with one another than against one another. The parties thus are amenable to understanding the other party’s side and work on understanding issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.

Finally, but certainly not the least, and as mentioned earlier, the mediation takes place with the aid of a mediator who is a neutral third party. A good mediator is trained in conflict resolution and working with difficult situations. The good mediator is likely to work as much with the emotional aspects and relationship aspects of a case as he/she is to work on the topical issues of the matter. The mediator, as a neutral party gives no legal advice, but guides the parties through the problem solving process. The mediator may or may not suggest alternative solutions to the dispute. Whether he or she offers advice or not, the trained mediator helps the parties think outside of the box for possible solutions to the dispute, thus enabling the parties to find the avenue to dispute resolution that suits them best.

When to use Mediation

Mediation can function not only as a tool for dispute resolution but also as a means of dispute prevention. Mediation can be used to facilitate the process of contract negotiation by the identification of mutual interests and the promotion of effective communication between two parties.

Not all disputes lend themselves well to mediation. One set of criteria for suitability is provided in mediation. FACTORS RELATING TO THE PARTIES: Factors relating to the parties provide the most important determinants when deciding whether or not a dispute lends itself to mediation, as of course, the parties are the essential key to mediation. Basically, if parties are not ready and willing to mediate, mediation cannot take place.If mediation takes place against the party’s wishes, the process will not work because one of the principles of mediation is participation, and the parties will not constructively participate if they are forced. Another factor to consider when judging dispute suitability for mediation is whether the parties have legal representation.

If one party has and the other does not, then it is not fair to mediate. Unlike the court system, a legal representative will not be appointed to the non-represented party. Therefore both parties need to consent to either be represented by legal advisors or not. It is not essential that legal advisors are present in the mediation session.

However in most cases it is strongly advised that the parties seek legal advice before signing the legally binding agreement. A final factor to consider is the legal capacity of the parties. A minor cannot enter a mediation session for obvious reasons, the same goes for persons with mental illness or disability that would affect their decision-making ability.

Once these are considered and no difficulties found, the remaining points on the checklist need to be considered.

Roles and Functions of Mediators

Mediators can contribute to the settlement of disputes by creating favorable conditions for dealing with them. This can occur through;

Providing an appropriate physical environment this is through selection of neutral venues, appropriate seating arrangement, visual aids and security.

Providing a procedural framework-this is through conduct of the various stages of mediation process. As chair of the proceedings, they can establish basic ground rules; provide order, sequence and continuity. The mediators opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based.

Improving the emotional environment-This is a more subtle function and varies among mediation and mediators. They can improve the essential environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.

ASSISTING THE PARTIES TO COMMUNICATE: People in conflict tend not to communicate effectively and poor communication can cause disputes to escalate. For mediators to encourage efficiently they themselves must be good communicators and practice good speaking and listening skills, pay attention to non-verbal messages and other signals emanating from the context of the mediation.

FACILITATING THE PARTIES NEGOTIATIONS: Mediators can contribute expertise and experience in all models and styles of negotiation so that the parties are able to negotiate more constructively, efficiently and productively. This function is prominent after the problem-defining stages of mediation and involves mediators bringing direction and finesse to the negotiation efforts of the parties. Mediators can also act as catalysts for creative problem solving, for example by brainstorming or referring to settlement options generated in analogues mediation experiences.

FUNCTIONS OF THE PARTIES

PREPARATION: Whether parties enter mediation on their own violation or because legislation obligates them to do so, they prepare for mediation in much the same way they would for negotiations, save that the mediator may supervise and facilitate their preparation. Mediators may require providing position statements, valuations reports and risk assessment analysis. The parties may also be required to consent to an agreement to mediate before preparatory activities commence.

DISCLOSURE OF INFORMATION: Agreements to mediate, mediation rules and court based referral orders may have requirements for the disclosure of information by the parties and mediators may have express or implied powers to direct them to produce documents, reports and other material. In court referred mediation, parties usually exchange with each other all material which would be available through discovery or disclosure rules were the matter to proceed to hearing. This would include witness statement, valuations and statement accounts.

PARTY PARTICIPATION: The objectives of mediation and its emphasis on consensual outcomes imply a direct input from the parties themselves. The mediation system will expect that parties attend and participate in the mediation meeting; and some mediation rules require a party, if a neutral person, to attend in person.However,the process assesses party participation in overall terms, so a party failing to participate in the initial stages may make up for this later in the process.

Mediation

— Welcome NOTE from the Chief Justice —

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Mediation