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Conflict Mediation and Dispute Resolution Services
What is mediation?
Mediation is a non-adversarial process in which the parties use an independent neutral third party to help settle a dispute or negotiation and to reach agreement in a way acceptable to them. The mediator will do this by helping the parties to identify and evaluate issues and formulate a mutually acceptable resolution. Mediation differs from arbitration in that an arbitrator makes a decision whereas in mediation the parties make the decision.
When should a mediator intervene?
A properly trained mediator can intervene to keep the parties on track, to accumulate reliable information and to direct the efforts of the parties to get past conflict to find a solution.
In a dispute or a negotiation the parties are often too close to the issues and too personally involved to be able to get a good result. The history of the dispute or the negotiation can restrict the parties. For example, the parties may distrust one another or there may be a history of conflict which will come up again when the parties meet.
Mediation can be particularly helpful in even the most bitter of disputes, because the independent mediator can keep bringing the parties back on track and reminding them of their goals.
What will a mediator not do?
A mediator will not give the parties legal advice or act for them as a lawyer. His role is to guide and help them through the process of finding agreement.
What can a mediator do that the parties cannot?
One of the main strengths of mediation comes from the neutrality, independence and impartiality of the mediator. In that role he can gain the trust of the parties and do things that someone who is too close to either party cannot.
Control
Proceedings are voluntary, so a decision to try mediation can be revoked at any time. The parties never give up control. Each party has control over the outcome, rather than taking the risk of getting an unfavourable decision from a judge or arbitrator. Both parties can be winners, instead of one winning and one losing. You can ensure that any agreement is practical and workable.
Preservation of relationships
Disputes often irreparably damage relationships. Mediation enables the parties to emphasise meeting their interests with an eye on the future, rather than looking to the past. Relationships can be maintained, rather than damaged, or can be terminated amicably.
Creativity
The parties are encouraged to be more creative in solving disputes. Instead of being stuck on positions, parties are encouraged to look at their interests. Rather than dividing a fixed pie, you can look for ways of making the pie bigger.
Avoidance of delays
Mediation can resolve disputes quickly, often during a session lasting 2 or 3 hours and can usually be scheduled within a few days or weeks.
Saving of court costs
There are all sorts of costs incurred in going to court. Apart from legal fees, there are the hidden costs in time delays, and the stress that inevitably follows.
Privacy
Who knows who'll be in court, or whether the media will take an interest in the public proceedings of a court. Court proceedings often become a matter of public record. A mediation is as private or as public as the parties want to make it.
Flexibility
The parties control the process and are not governed by court or arbitration procedures.
Do Mediations work?
Accurate success rates are not available because of the confidential and flexible nature of mediation as a process. Some estimates have said that over 80% of cases referred to mediation are settled through that process. These figures are only guesses, but the experience of most mediators is that the process works. Even if a settlement is not reached the parties will have had an opportunity to confront the issues in a controlled and conciliatory manner and to have a better grasp of the issues and of the other points of view. Even matters that are not settled at mediation are often settled shortly afterwards. Research shows that parties observe the terms of mediated agreements more than they observe agreements imposed by another person. Mediated settlements tend to hold over time. If disputes occur later the parties are more likely to use a co-operative forum to resolve their differences, rather than to be adversaries.
What will a Mediator do?
A mediator will
• Neutrally take the initiative and keep negotiations on track.
• Open communication channels or improve communication if the parties are already talking.
• Chair negotiations.
• Establish and supervise procedures for negotiations.
• Help parties to carry on their negotiations productively, to identify their interests and to make full use of outside experts and resources to enlarge settlement options.
• Explore problems, define issues and interests and look for options.
• Check that any settlement is realistic and able to be implemented.
• Sometimes to take blame or responsibility for unpopular decisions that the parties are willing to accept, enabling them to save face.
What happens at Mediation?
Mediation is a non-adversarial process in which the parties use an independent neutral third party to help settle a dispute or negotiation and to reach agreement in a way acceptable to them. The mediator will do this by helping the parties to identify and evaluate issues and formulate a mutually acceptable resolution. Mediation differs from arbitration in that an arbitrator makes a decision whereas in mediation the parties make the decision.
Do Lawyers have a role?
The aim of mediation is to get each of the parties to achieve the result which is the best possible one for them. Sometimes each party's lawyer has an important role in advising the party to ensure that that party's best interests are met.
Often a party will be weighing up the possibility of going to court against the possibility of mediation. It essential that the option of going to court (like all other possibilities) is realistically assessed, because the parties may believe that that is a better option than mediation. They need proper legal advice to make that decision and they should be encouraged to get that advice. Each party reserves the right to withdraw from the mediation at any time if they consider that their interests would be better served by doing so.
If lawyers are involved in mediation meetings the mediator will discuss with them the role that they wish to take. There are a number of possibilities. Sometimes the parties will meet with the mediator without lawyers present on the understanding that the mediator will make sure that the parties get proper legal advice before making any agreement. Sometimes the lawyers will attend the mediation and allow the parties to negotiate, but be there to provide advice and support if called upon. Sometimes the lawyers will take a significant role in conducting negotiations.
Every mediation is different and the mediator will help the parties to agree on the procedure which will be the most productive.