What is mediation?
Mediation is a highly effective process by which an impartial and neutral third party facilitates the settlement of the participants’ dispute. A mediator will explore the participants’ perception of their dispute to get to the heart of the problem, helping participants to identify common ground, shared values and mutual interests. Whilst a mediator will almost certainly (gently) challenge and test the participants’ positions, he/she will not make a decision for the participants or offer an evaluation of the merits of their cases. The vast majority of mediation sessions will conclude with a settlement. Where settlement is not reached, participants will almost certainly leave with a better understanding of what is driving their dispute and having narrowed the issues in the case.
Mediation is confidential. All participants, and anybody else in attendance, will be required to agree to keep matters private. A mediator will in most sessions hold private conversations with each participant and will never disclose to the other participants the content of those discussions, save for where permitted to do so by that participant. What occurs during mediation will (save for some exceptions) be considered to be “without prejudice” and therefore inadmissible in proceedings. The vast majority of civil litigation, in contrast to mediation, will take place in open court.
Your mediator will have no financial or other interest in the outcome of your dispute and he/she will strive to demonstrate unwavering neutrality throughout the mediation process. This is absolutely essential to the mediation process and both parties must have absolute confidence in the mediator’s impartiality. As such, all pre-mediation and post-mediation correspondence will be open and transparent.
Litigation is expensive and risky. Participants who come to mediation in good faith and with an open mind are highly likely to reach settlement, avoiding the need for court proceedings. In cases where settlement is not reached, the participants will usually narrow the issues in dispute and this too can minimise the cost of litigation.
Mediation is a constructive and co-operative process, with an emphasis on identifying and protecting mutual interests. Many participants to disputes will have (or would like to have) an ongoing relationship with one another. It makes perfect sense for participants in such circumstances to choose a method of dispute resolution which is unlikely to heighten tension or inflict irreparable harm to their relationship. Mediation is often the best option in such cases.
Mediation is about the participants and will be adapted to meet their needs. Everything – from venue, to procedure, to any eventual settlement – is in the control of the participants. The participants know their dispute better than anybody else and they are best-placed to decide how to go about resolving it. They have the freedom to reach whatever settlement they see fit (within reason).