What is Mediation?

A Mediator works with two or more parties to resolve a dispute by assisting them to:

·               identify the key issues in dispute

·               communicate effectively

·               develop options

·               finalise an agreement to resolve their issues in dispute.

Mediation is a confidential process.  An agreement between the parties typically renders  the following confidential (as far as the law allows):

•           all discussions during the mediation

•           all documents prepared for the mediation

•           all discussions with the mediator.

The terms of the settlement may also be confidential.

Mediation is usually a voluntary process which means that the parties enter into the process voluntarily and can walk away at any time if they are not satisfied with the process.

Mediation is conducted without prejudice to any legal rights which the parties may have.  If mediation is unsuccessful other means of dispute resolution may be used or continued.

Agreements reached at mediation are usually final and binding contractual agreements.

THE MEDIATOR

A mediator is an independent, neutral person with expertise in dispute resolution.  The mediator helps the parties to negotiate more effectively.

Nina Harding is a LEADR Advanced Mediator with over a decade’s experience as a Dispute Resolution Expert.  Nina has resolved numerous business disputes.  See Experience for details.

 Selecting a Mediator

When selecting a mediator ensure that the mediator has substantial experience mediating disputes, appropriate training and continuing education and is seen as credible and competant by the parties.

Often the parties will speak to (or meet with) the mediator prior to confirming the mediator’s appointment.  

Workplace Disputes

Mediation is a good process for resolving workplace disputes because:

mediation is confidential,

fast and low cost

mediation can deal with the intangible issues such as;   perceptions, management style or expectations, relationship issues, stress, the substantive issues.

Mediation has a positive and future focus,

Mediation can offer face saving

Mediation gives people an opportunity to understand the impact of their actions and perhaps change their behaviour.

Case Study:

Two senior executives from the same organization have virtually stopped communicating with one another.  Nina was asked by the HR Manager to resolve the dispute which is now having an impact on the rest of the department and distracting people from their work.  The organisation is also concerned about corporate governance issues which have been neglected.  The mediator speaks to the two managers and the HR manager to discuss the goals of the mediation and their commitment.  (If there was no commitment at this stage the mediation would not proceed.)  The mediator encourages the managers to do some simple preparation prior to the mediation.  The mediation involves two meetings of approximately 3 hours per session.  They reach an agreement which is summarized into a Memorandum of Understanding.  The mediator follows up with a call some 6 weeks later.

Commercial / Business Disputes

Community / Environmental Disputes

The Cost of  Mediation

Before the mediation the parties decide on how the costs of the mediation are to be shared.

Usually the costs of the mediation are shared equally by the parties.  The costs of the mediation include the fees of the mediator and any room hire costs and other associated expenses.

HOW LONG WILL MEDIATION TAKE ?

How long is a piece of string. 

It all depends on the complexity of the issues and the number of parties involved.  An experienced mediator should be able to give you an estimate of the time required prior to the mediation.

Commercial or business disputes usually take between 4 – 6 hours depending on the complexity of the dispute.

HOW DOES MEDIATION WORK ?

The mediator will usually meet with each of the parties prior to the mediation to discuss the process, preparation for the mediation, the role of the mediator, etc.

The mediation is held in a neutral venue that suits the needs of the parties.  The mediator will open the mediation by explaining the process and the essential features of mediation.

The mediator will then ask the parties to explain the issues from their perspective.  The mediator will assist the parties to identify and explore the most important issues in dispute.  The mediator may, with the input of the parties, will identify an agenda for the discussion.

The parties will then discuss the key issues in some depth, clarify misunderstandings and begin to indentify options that meet the needs of the parties.

The mediation may meet with the parties separately to discuss any issues which were not raised in the previous joint session, discuss options and alternatives.  The discussions with the mediator in private session are confidential unless the party gives the mediator permission to disclose what they have raised with the mediator.

The mediator will assist the parties to generate options which meet their needs (as far as possible).  When the parties reach an agreement the terms of the agreement are usually drafted into an agreement at the mediation. 

BENEFITS OF MEDIATION

Mediation[1]:

•     puts control of the resolution of the dispute into the hands of those best equipped to find the most appropriate solution in view of the parties' individual needs and interests;

•     helps parties to negotiate without fear of showing weakness;

•     provides an opportunity for parties to have their say, to tell others exactly how they see the problem in a confidential, non-threatening atmosphere without prejudice to any rights;

•     helps disputing parties understand how the others see and feel about the problem;

•     enables business relationships to be maintained and even enhanced by encouraging co-operative problem solving;

•     enables identification and exploration of all issues, including those which may not be revealed in arbitration or litigation because of the application of the rules of evidence;

•     helps disputing parties to regain the perspective that can so easily be lost in arbitration and litigation;

•     provides the opportunity for an unlimited range of creative and final solutions unlike the limited remedies which can be awarded by an arbitrator or a judge;

•     can provide procedural and psychological as well as substantive satisfaction;

•     is confidential thereby avoiding adverse publicity or media attention and the need for any confidential or commercially sensitive information or trade secrets to be publicly disclosed;

•     is usually significantly cheaper and quicker than arbitration or litigation and can be arranged to suit the convenience of the parties;

•     focuses on the future rather than on the rights and wrongs of the past.