Mediation
What is Mediation?
Mediation is an effective, pragmatic and constructive process with high success - and satisfaction - rates. It takes a cooperative, problem-solving approach, by which neutral third party mediator helps the disputing parties find constructive solutions to problems and make informed decisions. Any agreement reached is that of the parties alone.What does a mediator do?
A mediator helps to:
- isolate systematically the issues in dispute
- develop and explore options for resolution
- find a solution which meets the needs and interests of the parties involved.
A mediator does not:
- impose a solution
- coerce the parties into an agreement
- make substantive decisions for the parties
- give legal advice.
Why Mediation?
Mediation offers a number of key benefits:From communication...
The parties have an opportunity to free up communications, to have their say and to tell others exactly how they see the problem in a confidential, non-threatening atmosphere, without prejudice to their rights. Misunderstandings can often be cleared up.Disputing parties can better understand how the others see and feel about the problem.
The process is as confidential as the law allows, allowing the parties to avoid adverse publicity or the disclosure of sensitive information.
And problem-solving...
The control of the dispute resolution is put in the hands of the parties themselves, who are those best equipped to find the most appropriate solution in view of their individual needs and interests.Business and personal relationships can be maintained and even enhanced by the co-operative, problem-solving approach that mediation offers.
It is possible to identify and explore all the issues, including those that may not be revealed in litigation or arbitration because of the application of the rules of evidence.
Through to resolution...
While the past and any 'rights' and 'wrongs' are acknowledged, the focus is on the future. A full range of solutions can be explored (unlike the limited remedies which can be awarded by a judge or arbitrator).Parties can achieve procedural and psychological as well as substantive satisfaction by having their needs (and 'wants') identified and addressed.
Mediation is usually significantly cheaper and quicker than litigation or arbitration, minimising lost productivity and management time, and can be arranged to suit the convenience of the parties.
What happens at Mediation?
1. Pre-mediation
Often the mediator contacts the parties and may arrange to meet them either together or separately in what are called 'reliminary meetings', to deal with process issues.2. Mediator's opening statement
The mediator ensures that the parties understand the process, its aims and the role of each of those present.3. Parties' statements
The parties are asked to tell the mediator and the other party/ies why they are at mediation, and are encouraged (not forced) to speak on their own behalf. Parties and advisers/lawyers are informed of this procedure during any preliminary meeting.4. Summarising
The mediator briefly summarises the statements made by the parties and/or their advisers/lawyers.5. Agenda-setting (issue identification)
The mediator isolates the topics for discussion between the parties. These topics are expressed in a simple and neutral fashion, and become the agenda for the mediation. The parties can add to these.6. Issue exploration
The mediator encourages the parties to discuss each topic/issue in turn. Only when all topics have been discussed (or an opportunity for such discussion has been provided) does the mediator move to private session. The greatest benefit is usually gained by keeping the parties together as long as possible so that they have ample opportunity to understand the problem from each other's perspective.7. Private sessions
When all issues have been explored, the mediator usually speaks to the parties privately to gauge how it is going, consider options and perform a 'reality test'. Each party is given equal opportunity.8. Subsequent joint session
When the parties have had an opportunity to identify and evaluate some of the options for resolution, the parties meet to directly negotiate all or parts of a potential solution.9. Private sessions
The mediator checks with the parties that the solution that they are about to agree to is in fact the solution that will work for them. This helps to ensure that there are no outstanding issues and the parties are comfortable with the proposed solution.10. Agreement/Closing
The parties are encouraged to sign at least a 'Heads of Agreement' before they leave the mediation. The lawyers, rather than the mediator, usually write the agreement. The mediator checks that the agreement covers all the points discussed between the parties.