Guide to Mediation
Mediation is the most popular form of Alternative Dispute Resolution ("ADR"). It can take place only if all parties to the dispute agree. A specially trained professional, a mediator, guides the parties through the process with the aim of reaching a solution which the parties find acceptable.
In one phrase, the sole aim of the mediator is:
to help the parties reach a solution they can live with.
Everything in the mediation process is directed to that end. The mediator does not make any judgements, does not give any advice, and never takes sides. He will never express his views on whether the solution achieved is the right one, because if it's acceptable to the parties, it is the right one.
There are three kinds of mediators: civil & commercial, family, neighbourhood. The second and third deal with divorce and other family matters, and with neighbourhood disputes such as noisy neighbours. The commercial mediator deals with everything else. This site is concerned only with civil & commercial mediations; that is, with everything else.
The skilled mediator gently helps the parties to move away from concentrating on their rights and liabilities, and towards considering their needs and interests.
Mediation has three distinct characteristics:
- 1. It is consensual. The mediator does not impose any settlement; the parties decide when an agreement can be reached, and decide the nature of that agreement.
- 2. It is private and confidential. Nothing said at a mediation can be quoted later, not even in court should the mediation fail. Thus the parties are encouraged to state their true needs in private discussion with the mediator, who can subtly use that knowledge to seek common ground with the other party.
- 3. It focuses not on rights and liabilities, but on needs and interests. Awareness of rights leads to entrenched positions which can be resolved only by the unsatisfactory process of a full trial at court, whereas looking at the needs and interests means getting away from past difficulties and concentrating on what the parties really need for the future.
Mediation has these advantages:
| Flexible timing | A mediation can be held at any time acceptable to the parties, and is not dependent on court listings |
| Flexible location | It can be held anywhere acceptable to the parties, so long as two or three rooms are available for confidential discussions |
| Speed | A mediation may be arranged within a couple of weeks, or even a couple of hours if necessary; and it can usually take place before the parties spend months in preparing their case for trial or waiting for a court date |
| Confidentiality | All discussions are confidential and without prejudice |
| The parties in control | It's your dispute, and you are in charge of it; at any time you may abort the process and go to court |
| Less disruptive to relationships | After a court case, the parties may never speak again, and never do business together. With mediation, doing business together may even be part of the solution the parties reach, and mediation often rebuilds relationships, whereas litigation destroys them |
| Reduced costs | Mediation is usually far, far cheaper than a trial |
| Lawyers not essential… | …though often invaluable. But a party can represent himself, with or without a friend or colleague. |
| David & Goliath meet as equals | ...because at a mediation, there is usually just one representative on each side, plus their advisers; but since heavy costs are not incurred, Goliath (the large commercial enterprise or public authority) cannot use his financial muscle to bully David (little Joe Public) |
Mediation works because it helps the parties to resolve even the most complex disputes in a practical way. It addresses their interests and needs, without the risks and costs of court proceedings.
The parties achieve their own solution, without an imposed decision.
Litigation is like dancing with a gorilla: the dance stops only when the gorilla chooses to let go. Yet with mediation the parties are in charge – probably for the last time before being locked in a "gorilla dance" which lasts for months, and which ends only after an expensive court hearing – and the day of the mediation is likely to be their last chance of controlling events, before the gorilla dance takes over their lives!
On the following pages Chris Makin describes how a mediation is arranged, what happens on the day, how much it costs, and what else you need to know to achieve a solution to your or your client's problems.