Mediation

What is Mediation and Why Mediate?

What is Mediation and Why Mediate?

Mediation is a process where the parties participate in a consensual process and aim to reach a mutually agreeable resolution. It is a well-established process where they meet, discuss and negotiate their way out of dispute with the help of a neutral and independent third party.


The term "mediation" broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable and dynamics that ordinary negotiation lacks. The mediator acts as a neutral third party and facilitates rather than directs the process


Mediation is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with proven effect. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Parties may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.


Mediation is generally more cost effective and productive than going to court. It is a flexible tool that can be used to prevent problems and disagreements from becoming worse.

  • Mediation Principals

    Our mediation is based on the following Principles:

    • Collaborative problem solving between parties in dispute to reach an amicable win-win resolution accepted by those involved.
    • A focus heavily on moving past portioning blame and historic events; and working towards the settlement by adopting a solution based approach.

  • The Approach to Mediation

    • Asking those involved to look at their own behaviour and think about how they can contribute to putting things right.
    • Practical solutions to benefit all parties, for example future 'trading out of disputes'.
    • Rebuilding relationships for the future; as opposed to the hostility that exists in a more formal environment.

Why Mediate?

From a purely legislative point of view, the court system is overburdened. As a direct result of this, the government is looking for more and more disputes to explore mediation, prior to setting a hearing date, to relieve this court system pressure.

 

As such the Practice Direction Pre-Action Conduct and the Civil Procedure Rules make provision for all parties to explore mediation and alternative dispute resolution methods. Parties who fail to explore mediation, refuse to mediate or ignore a request to mediate risk sanctions being imposed against them which may seriously disadvantage or render untenable their position in any litigation.

 

From a more practical position, our mediation process holds 6 key benefits over litigation we call "The Big Six C's".

  • Cost

    While a mediator may charge a fee comparable to that of a lawyer, the mediation process generally takes much less time than moving a case through standard legal channels. 


    While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money, less stress and less uncertainty.

  • Confidentiality

    While court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the mediator(s) know what happened. 


    Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation has finished. 


    The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.

  • Control

    Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge. 


    Often, a judge cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.

  • Compliance

    Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is high. 


    This further reduces costs, because the parties do not have to employ a lawyer to force compliance with the agreement. 


    The mediated agreement is, however, fully enforceable in a court of law and can be sealed by a court to resolve a court case.

  • Co-operation

    Parties to mediation are typically ready to work together toward a mutually agreeable resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to 'negotiate' their position. 


    The parties thus are more amenable to understanding the other party's side and work together on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.

  • Choice

    Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. 


    The mediator helps the parties think 'outside of the box' for possible solutions to the dispute, broadening the range of possible choices that a court does not have.


    The choice to settle or walk away remains with the parties; and that option is not there in a court of law.