BENEFITS OF MEDIATION
Some of the potential benefits of mediation include:
- Communication problems between the parties will be overcome. The mediator is a neutral third party who can act as an intermediary between the different personalities and negotiating styles of the parties.
- Judges like parties who try to mediate.
- YOU are in control and YOU find the solution.
- The mediator can help the parties work through a deadlock situation.
- Confidentiality and privilege are the foundation of the mediation process. That’s why parties engage in the process.
- The parties have complete choice over the selection of the mediator and can therefore choose the mediator who is most appropriate for the dispute. You cannot choose your judge.
- The legal costs and management time can be reduced through mediation. You save the risk of a cost order against you.
- Mediation can produce outcomes that might not be possible via determination by the court. The limited scope of legal remedies in court, i.e. win or lose may be inappropriate to resolve the wide range of business or commercial issues that might arise.
- The process is entirely flexible and can be tailored to meet the parties’ needs and all issues.
- The clients have active participation in the mediation process and control the outcome.
- Mediation is voluntary. The parties can withdraw from, or terminate, the mediation at any time.
- The mediation process provides a tool for project managing large, complex or multi-party disputes. Courts are not geared for this.
- Mediation will provide a speedier resolution. It can be arranged quickly, often within a few days or weeks.
- There is “nothing to lose” by attempting a mediation.
- Mediation has a high success rate. The outcome is likely to be better to clients than any solution that a court imposes.
- If a mediation does not result in settlement, the parties are likely to have benefited from the process by:
- having the opportunity to listen to each other’s points of view and perspectives;
- narrowing the issues in dispute; and
- testing with the mediator the strengths and weaknesses of the case, and the strategies adopted or considered, in the run up to trial.
The day is flexible and the mediator will try to plan and structure the day.
There are 4 phases.
- Opening Phase: The mediator address all parties together setting out the process for the day and dealing with any questions. In the joint meeting the Mediator will make an opening statement and each party will be invited to state their case and their perspective and highlight any issues of concern. This is not mandatory, in fact nothing is, but it is useful for the parties to address the other side directly and talk to them. This may seem daunting but the opening session is very useful for setting the tone of the mediation and a good opportunity for the parties to state their position and understand the position of the other side. Issue can be defined and issues /agenda can be identified.
- Exploration Phase: The mediator meets each party in total confidence. Any information given to the mediator will not be disclosed to the other side unless authorised to do so. The aim is to identify each parties key concerns and needs and interests. This is a challenging time but if all parties engage then is very interesting and useful. Discussions will take place regarding strengths and weaknesses of individual positions. It is the confidentiality of the process that allow this to happen.
- Negotiation Phase: This is a very interesting phase where the parties have to see where they can agree on matters and see if a settlement can be made. This will result in offers made and refused and accepted. Making an offer is not a sign a weakness but a commercial decision taking into account the legal issues, the values and the needs of the parties. The mediator asks the parties for their views as to how it can be settled.
- Settlement Phase: If the negotiation phase is successful and an agreement in principle for resolving the dispute is reached then it’s time to draft a settlement agreement. Mediators will make sure that the issues in dispute are covered and that the terms of the settlement are clear and that each party is satisfied. The settlement should be reduced to writing to ensure that it is binding and signed by the relevant parties.
Whilst the day is challenging but if all parties engage then the beauty of mediation is that BOTH parties agree on how this matter should be settled and avoid litigation and when issues have been settled both parties can move on and create value and certainty.
Certainty cannot be achieved in proceedings until judgement is given and that means one party wins and one party loses. Mediation avoids this.