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About Mediation

Mediation is a magical process which enables parties to resolve their disputes swiftly, cheaply and effectively. It is a way of avoiding lengthy and costly litigation and achieves a more satisfactory outcome for all - and it works even when all other attempts have failed.

What is mediation?

 

Introduction

 

 

The concept of introducing a 'third party neutral' to intercede in hostile and antagonistic bi-lateral relationships is not new. Yet it is not as old and as natural a form of dispute resolution as is often stated. When parties in ancient times sought the help of the Wise Man or Head of the village, they invariably sought his arbitration skills in order to decide who was right and who was wrong; it was probably not using him as a true mediator facilitating the parties' own resolution. Nevertheless, unfamiliarity and scepticism in relation to alternative dispute resolution processes are still widespread.

 

ADR, as an alternative to litigation, has grown out of an ever-increasing dissatisfaction with the legal process. Litigation is almost universally regarded as slow, cumbersome, costly and inadequate. Statistics show that between 60% and 75% of successful litigants in personal injury claims remained dissatisfied with the outcome: (see Law Commission Survey 1994). Litigants often feel that:

  • the award is too little
  • the judgment comes too late bearing in mind the time taken to reach court
  • the process was too costly
  • the whole process was too time-consuming
  • the litigation resulted in the end of a previously productive commercial relationship

 

Mediation can be used by the rich and by the poor. It can be used in multi-million pound international commercial disputes as readily as it can be invoked in 'minor' neighbour disputes. It is swift, relatively cheap, and has a reported success rate of up to 85%.

 

How Mediation Works In The Legal Environment

 

Many - including lawyers - still believe mediation is a form of arbitration. Those members of the general public who have heard of the word think mediation is little more than a sophisticated mode of negotiation. Many believe that the mediator will in some way judge the issues between those in dispute. Others perceive it simply as an exercise in 'compromise reaching'. But it is really none of these.

 

Mediation is a form of Alternative Dispute Resolution (ADR) whereby a 'third party neutral' intervenes to facilitate and assist the disputing parties in reaching a mutually acceptable settlement. The mediator is neither a judge nor an arbitrator; he or she is not an adjudicator, nor someone who imposes a resolution or a settlement upon the parties. Instead, the mediator acts simply as a 'midwife, assisting in the labour and birth of a settlement'. The mediator will help by seeking to identify common aims and objectives, by re-opening lines of communication, and by developing mutually acceptable proposals for settlement. In this way, the mediator can gently move the parties away from a preoccupation with their rights and liabilities, and nudge them towards an exploration of their needs and interests the transition from a position of conflict to a position where they can form a 'working alliance'.

 

Mediation has three fundamental and distinctive elements:

 

It is consensual

 

The parties decide whether an agreement can be reached, and they control the nature and the terms of it. As the mediator does not impose any resolution or settlement or terms of an agreement upon the parties, there is not the inevitable 'win/lose' situation that accompanies litigation or arbitration. The parties have absolute control of the outcome. The parties are in this way removed from the 'coercive' atmosphere of litigation whether in the courts or in arbitration or adjudication. They are entitled to withdraw from the mediation process at any time, and are not bound by anything said or agreed until such time as they sign a settlement agreement. However, once the agreement is signed, the settlement becomes as legally binding and enforceable as if it were the subject of a contract or a court order.

 

It is private and confidential

 

The mediation is held not in public but in private, and one of the cornerstones of the process is that it is confidential and without prejudice. Anything disclosed during the mediation is disclosed 'without prejudice' and cannot be used outside or in later proceedings should the parties fail to reach agreement. Moreover, any information shared by one party with the mediator will be treated in confidence and the mediator should not pass it on to the other party without specific permission to do so.

 

It focuses not on 'rights and liabilities', but on 'needs and interests'

 

The reason for the failure of many lengthy and protracted negotiations is that the parties all too readily fall into and get 'bogged down' in entrenched positions, and are unable to overcome the impasse that results. These entrenched positions derive from a rights culture a preoccupation with rights and liabilities, entitlements and obligations. Unlike litigation, which determines 'what happened in the past, why it happened, and whose fault it was', mediation looks to the future and encourages parties to re-evaluate their aims and objectives in the dispute by re-examining their current and their future needs and interests.

 

It focuses not on 'rights and liabilities', but on 'needs and interests'

 

The reason for the failure of many lengthy and protracted negotiations is that the parties all too readily fall into and get 'bogged down' in entrenched positions, and are unable to overcome the impasse that results. These entrenched positions derive from a rights culture a preoccupation with rights and liabilities, entitlements and obligations. Unlike litigation, which determines 'what happened in the past, why it happened, and whose fault it was', mediation looks to the future and encourages parties to re-evaluate their aims and objectives in the dispute by re-examining their current and their future needs and interests.