Traditional dispute resolution processes can often be a battle of attrition and monetary resources. Many disputes have the capacity to be settled without the need for lengthy and costly Court proceedings. Mediation is an alternative dispute resolution procedure which covers virtually all disputes; individual as well as corporate. The end goal is to arrive at a solution which is commercially viable and sustainable for both parties.
The Mediation Process
- Mediation is voluntary and the procedure is entirely confidential.
- Whereas legal proceedings tend to follow a set procedure, mediation is flexible. It can be conducted in ‘private sessions’, where each party meets separately with the mediator, or alternatively in ‘joint sessions’ where all parties are present, or a mixture of both types of sessions.
- The format of the mediation will be agreed at the beginning by the parties; the mediator will assist, if necessary, and suggest the most appropriate procedure.
- The mediator will then allow the parties to explore the issues, reflect on what they want to achieve and collaboratively identify potential solutions.
- If the parties are able to reach settlement the mediator will normally help the parties to formulate an agreed solution in writing.
- Once the settlement is signed by the parties, it becomes binding.
Preparation for Mediation
The Parties supply the mediator with contact details, including the details of any current legal advisor.
A mediation agreement, to be signed by the participants, is prepared by the mediator, the content of which is agreed by both parties prior to commencement of the mediation. In addition, the parties will confirm specifically who has authority to settle the dispute.
A suitable location for the mediation is agreed. Often a venue with two private rooms is preferable, to enable confidential discussions to be undertaken.
Each party submits documents outlining their positions in summary. This enables the mediator to familiarise himself with the facts of the dispute prior to engaging the parties.
Usually, the duration of the mediation session will also be agreed in advance by both parties.
All parties will attend the mediation (including their legal representatives, if applicable).
The mediator will discuss with the parties the negotiation style that fits best with the dispute, including the most appropriate format for the mediation and whether private or joint sessions are preferred, or a combination of the two.
The mediator will then explore with the parties:
- The key issues of the dispute
- What, specifically, each party is looking to achieve
- Possible solutions to the dispute
If and when agreement is reached it is normally recorded within a written agreement and signed off by the parties. Once signed, the mediation agreement is binding on all parties unless expressed to the contrary.
The Role of the Mediator
A mediator must be accredited and has undertaken specific training to enable him to deal effectively will a broad variety of disputes.
Mediators act independently and are completely neutral. No judgement will be passed on the dispute nor will the mediator’s opinion on the outcome be expressed.
The role of the mediator is to set up a safe environment in which the dispute can be properly addressed, to further discussion between the parties and enable them to find solutions in a collaborative manner. The parties will not be given specific advice by the mediator.