Mediation is a flexible settlement technique, conducted privately and confidentially, in which a mediator acts as a neutral facilitator to help the parties try to arrive at a negotiated settlement of their dispute.
In direct contrast to court proceedings where the parties place the case in the hands of a judge who will then go on to decide the outcome of the case, in mediation proceedings, the parties remain in control of the outcome by negotiating an agreement based on their personal and business interests.
The key principles of mediation are that:
Mediation is a completely voluntary process. As the parties have attended voluntarily, generally speaking, they appreciate the benefits of reaching a settlement through mediation which can help aid the discussions.
Mediation is a completely confidential process which means that anything discussed during the mediation process is confidential. The mediator also owes a duty of confidentiality to each of the parties and therefore anything discussed during the private sessions is confidential unless of course the party provides explicit authority to disclose information for the purposes of progressing the negotiations.
Discussions that take place during mediation are "without prejudice" which means that any offers, concessions or any admissions made in the course of the mediation which are communicated to the other party for the purpose of trying to resolve this matter can’t be used in other proceedings.
Mediation is not binding until the point of agreement. The aim of mediation is to enable the parties to reach a mutually acceptable resolution. Only then can a binding agreement be reached.
Landlord and Tenant Disputes
Professional Negligence Claims
These are only a few examples. If you are currently involved in a dispute, please call us to discuss matters further.
The role of the mediator is to facilitate and guide the discussions. The mediator is there to assist in clarifying the issues which are important in the dispute. The role of the mediator is to help parties reach a solution to their problem and to arrive at an outcome that both parties are happy to accept. Mediators avoid taking sides, making judgements or giving guidance. They are simply responsible for developing effective communications and building consensus between the parties.
During the mediation process, the mediator will have meetings with the parties individually and if appropriate collectively. The purpose of the meetings is to address the issues in the case and explore possible solutions.
In the course of the mediation, the parties can exchange settlement proposals, which may lead to a negotiated agreement. Such proposals can be made directly between the parties or through the mediator.
People in disputes who are considering using mediation as a way to resolve their differences often want to know what the process offers. While mediation cannot guarantee specific results, there are trends that are characteristic of mediation. Below is a list of some of the benefits of mediation, broadly considered. Mediation generally produces or promotes:
Economical Decisions - Mediation is generally less expensive when contrasted to the expense of litigation.
Rapid Settlements - In an era when it may take as long as a year to get a court date, and multiple years if a case is appealed, the mediation alternative often provides a more timely way of resolving disputes. When parties want to get on with their business or their lives, mediation may be desirable as a means of producing rapid results.
Mutually Satisfactory Outcomes - Parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed by a third party decision-maker, like a judge.
High Rate of Compliance - Parties who have reached their own agreement in mediation are also generally more likely to follow through and comply with its terms than those whose resolution has been imposed by a third party decision-maker.
Comprehensive and Customised Agreements - Mediated settlements are able to address both legal and extra legal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily susceptible to legal determination. The parties can tailor their settlement to their particular situation.
Greater Degree of Control and Predictability of Outcome - Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a mediated settlement than they would be if a case is arbitrated or adjudicated.
Personal Empowerment - People who negotiate their own settlements often feel more powerful than those who use advocates, such as lawyers, to represent them. Mediation negotiations can provide a forum for learning about and exercising personal power or influence.
Preservation of an Ongoing Relationship or Termination of a Relationship in a More Amicable Way - Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties' interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a relationship more amicable.
Workable and Implementable Decisions - Parties who mediate their differences are able to attend to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of the settlement.
Agreements that are Better than Simple Compromises or Win/Lose Outcomes - Interest-based mediated negotiations can result in settlements that are more satisfactory to all parties than simple compromise decisions.
Decisions that Hold Up Over Time - Mediated settlements tend to hold up over time, and if a later dispute results, the parties are more likely to utilise a cooperative forum of problem-solving to resolve their differences than to pursue an adversarial approach.
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