What Is Mediation Print
Written by Howard Elliott   
Tuesday, 13 May 2008 11:08

Mediation is a dispute management process aimed at assisting parties to find a mutually satisfying resolution to their problems, without the need to resort to a third party to impose a decision upon them

How does Mediation work?
The mediator is an independent and entirely impartial facilitator of a discussion process aimed at assisting the parties to find their own solutions to their problems. Many mediators utilise a combination of group and private discussions aimed at guiding the parties towards finding a resolution.

Mediation is a voluntary and controlled process focused on finding ownership of mutually satisfying solutions, in a safe environment where the mediator is impartial and the material discussed remains confidential.

Mutually satisfying resolutions.
The mediator will not impose a decision on the parties - instead the process is one of exploration of issues and legal positions, aimed at finding a solution that all of the parties find mutually acceptable. The result is that the participants genuinely have ownership of the outcome, and the satisfaction of knowing that they have worked together to resolve their disputes and repair damaged relationships.

Voluntary.
Unlike legal proceedings, mediation is a process that all parties actively choose to participate in. The parties are free to leave at any time and without reason. However, it is generally accepted that the parties participating in the mediation are there because they genuinely wish to see the dispute resolved and are conscious that legal rights can still be pursued should the mediation fail.

Impartiality & Safety.
It is important that the parties are fully aware that the mediator is not present to provide legal advice. Instead the mediator is entirely impartial, and simply provides a non-threatening environment for discussion.

Confidentiality.
Material discussed at mediation remains confidential to the parties and to the mediator - except as required by law. Likewise, in the event that either of the individual parties has confidential discussions with the mediator, the content of these discussions remain confidential to the party concerned and the mediator.

Why does Mediation work?
There are a number of reasons Mediation works as well as it does:

The outcome is something the parties actually have ownership of. There have been no orders made or decisions handed down. Instead the mediator has helped the parties find their own mutually acceptable solution. It is commonly accepted that the parties find the process extremely satisfying.

An understanding of the facts surrounding the dispute is essential. However, it is not vital that there be agreement on any issues of who may have been right or wrong. Instead once the circumstances are discussed, the mediator guides the parties through explaining what issues are of real importance to them and addressing what present and future needs exist for the matter to be resolved.

Because the process is confidential, there is no risk of bad press associated with any settlements being made.

There is often uncertainty or litigation risk involved in court proceedings or arbitration - mediation removes this risk and gives the power to make decisions back to the parties, with their legal advisers present.

The process is fast. Most commercial mediations are concluded within a day. While the process can seem drawn out at the time, it is considerably faster and significantly less expensive than the legal and expert witness costs associated with litigation.

It gets results! Statistics vary but most confirm that the rate of agreements being reached is high, and it is not unusual for mediators to have success rates ranging from 75% to 95%. However, it is important that the parties understand that there is no shame in not settling, especially if there are more attractive alternatives available.


How to Prepare for Mediation
It is entirely the responsibility of the parties and their legal advisers to ensure that they are adequately prepared for the mediation. However, there are a number of fundamental issues that need to be considered:

Positions. It assists the parties to have an understanding of their legal rights and remedies available, and their chances of success if they were to actually exercise those rights.

Desired Outcomes. It is also important that the parties know what they actually wish to achieve and have considered how to approach discussing issues with the other parties.

Evidence. Prepare your evidence. Attend the mediation with an appropriately bound and numbered bundle of documents. Be prepared to provide a copy for each of the parties attending the mediation.

Confirm the date, time and venue of the mediation. Given that there is no fixed time frame for how long the mediation may take, it is sensible to ensure that the entire day is kept free for the purposes of the mediation.

Arbitration and mediation present a simple and cost effective way for technology companies to quickly resolve business disputes without the need for costly litigation and court actions.

One of the best guides on mediation (Mediation - A Practical Outline) was written by Sir Laurence Street.

Last Updated ( Wednesday, 11 February 2009 04:54 )