The Mediation Process

 

Mediation can be a magical process which facilitates the parties in a dispute to resolve it swiftly, cheaply and effectively. It can avoid lengthy and costly litigation and achieve a more satisfactory outcome for all and can work even when all other attempts have failed. So what is mediation?

The mediation concept of introducing a 'third party neutral' to intercede in hostile bi-lateral relationships is not new. Parties in ancient times did seek the assistance of the Wise Man or the head of the village, and when doing so the elder applied arbitration skills to decide a fair outcome.

Alternative Dispute Resolution ADR is an alternative to litigation and has grown out of an ever-increasing dissatisfaction with the expensive legal process.

Litigation is almost universally regarded as slow, cumbersome, costly and inadequate as most people want to have the debate settle differently and early so that they can either get on with their quiet enjoyment of life or face the consequences more quickly.

Statistics show that between 60% and 75% of successful litigants remained dissatisfied with the outcome as they felt that:

  • the judgment came too late
  • the process was too costly
  • the whole process was time-consuming
  • the award was too little
  • litigation resulted in an end of productive relationships

Mediation can be used by the rich and poor alike, in multi-party, high value commercial disputes as well as 'minor' timeshare disputes. It is swift, relatively cheap, and has a reported success rate of up to 85%.

So how does it work in the legal environment?

Many lawyers still believe mediation is a form of arbitration however that is simply wrong, others believe it is a slugging contest. However they are wrong as well. Members of the public and consumers who have heard of the word mediation believe is little more than a sophisticated mode of negotiation.

Many believe that the mediator will in some way judge the issues between those in dispute whilst others perceive it simply as an exercise in 'compromise reaching'. But it is really none of these.

Mediation is a form of (ADR) whereby a neutral person intercedes to enable and assist the warring parties in reaching a mutually acceptable settlement. The mediator is neither a judge nor an arbitrator; they are not an adjudicator, nor someone who imposes a resolution upon the parties - they simply assist the parties to do it themselves.

The mediator acts simply as a knowledgeable person assisting in a settlement. The mediator will help by seeking to identify common aims, objectives, and by re-opening the needy lines of communication. When the parties begin to discuss the matters and they have dispensed with hostilities both can mutually propose acceptable settlements. In this way, the mediator can gently move the parties away from a preoccupation with their rights and liabilities and nudge them towards an exploration of their needs and interests or the transition from a position of conflict to a position where they can form a 'working alliance'.

It is consensual - the parties decide whether an agreement can be reached and not any other. The parties control the nature and the terms of it. As the mediator does not impose any resolution or settlement or terms of the agreement upon the parties, there is not the inevitable 'win/lose' situation that accompanies litigation or arbitration.

The parties have absolute control of the outcome. The parties are in this way removed from the 'intimidating' atmosphere of litigation. The parties are entitled to withdraw from the process at any time and they are not bound by anything said or agreed until such time as they have sign a settlement agreement. However, once the agreement is signed, the settlement becomes binding and enforceable as if it were the subject of a contract or a court order.

It is private and confidential - the mediation is held not in public, but in private, and is one of the cornerstones of the process. It is confidential and ‘without prejudice’. Anything disclosed during the mediation is disclosed on a 'without prejudice' basis and cannot be used outside or in later proceedings should the parties fail to reach agreement. Moreover, any information shared by one party with the mediator will be treated in confidence and the mediator will not pass it on to the other party without specific permission to do so.

It focuses not on 'rights and liabilities', but on 'needs and interests' - the reason for the failure of many lengthy negotiations is that the parties get 'bogged down' in entrenched positions and are unable to overcome the impasses. These entrenched positions and immoveable encampments derive from a preoccupation with rights liabilities, entitlements and obligations.

Unlike litigation, which determines 'what happened in the past, why it happened, and whose fault it was', mediation looks to the future and re-evaluate the parties aims and objectives in the dispute by re-examining their current future needs and interests.

Mediation – it works