MEDIATION

Mediation is a process in which the participants to a dispute, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes.

The mediator’s role is to ensure both parties to a dispute have equal opportunity to contribute to the process and the outcome. With the help of both parties the mediator works to achieve a smart outcome – one in which all parties are happy and comfortable to move forward.

The ability of the mediator to facilitate the most opportune result is normally dependent on his or her ability to explore all aspects of the dispute as they are relevant to each party and to appropriately challenge each regarding the relevance and acceptability of settlement terms put to either side. Mediators work with the each party to a dispute to ensure they are comfortable with their own position but also have a sound understanding of the opposing side’s perspective. Only when that balance is achieved will the dispute have a chance of resolution.

Importantly, each party to a dispute to be mediated must agree to the guidelines of conduct, agree to the mediation process as outlined by the mediator and must have the authority to negotiate a satisfactory resolution.

Mediation is a confidential process, as far as the law provides, and the issue of confidentiality includes all group and individual discussions in joint and private sessions. The exception may include the need to consult legal advisors.

It is the role of the mediator to direct activities and control mediation proceedings. Each party to a dispute, as well as the mediator, has the right and the ability to terminate proceedings. If either party feels they would like to terminate proceedings, for whatever reason, they should seek a private session with the mediator before announcing their decision.

To ease proceedings a neutral venue, suitable to each party in the dispute, will be selected.

To ease the anxiety of a seemingly intractable dispute, the significant cost of court proceedings, the tension of waiting for litigation proceedings to be listed and the potential cost of losing a court case mediation is often the most practical strategy to resolve a dispute.

To draw a comparison mediation is regarded as informal, relatively unstructured and consensual while at the other end of the dispute settlement pathway arbitration is viewed as more formal, structured, adversarial and akin to the court system.

The nature of mediation provides each party with the opportunity to contribute to the agreed resolution. Hence, there is a greater chance of matters being settled in good faith.

The most distinguishing feature of good mediators is their ability to listen – to listen not only with their ears but also with their eyes and their heart. They know the unspoken word is as important as the spoken word. Facts, feelings and perceptions all interplay and their relative importance to the dispute is drawn out by the mediator’s questioning skills.

Good mediators are empathic whilst encouraging to each party to place their ‘real’ position on the table. But, at all times the mediator must remain neutral. Mediators do not direct proceedings, they control the mediation process, engaging each party to test the limits of their position, check what is acceptable and challenge the workability of the resolution put forward.

Sometimes a conflict of interest arises. In the event of a conflict of interest the ability of mediators to conduct themselves in both a neutral and impartial manner is compromised. The mediator should withdraw from proceedings if he or she is incapable of impartiality.

There is much to be gained from having a chat and learning a more about the mediation process. If you would like the services of a mediator and I am in a position to assist I will be pleased to do so.