What Is Mediation?
"See You Out of Court!"
Mediation is the name given to a broad range of processes for assisting in the resolution of disputes.
The key elements are:-
* An impartial person (the mediator) engages the parties in a series of confidential discussions, some being private with each party and others being joint. There is usually an initial joint discussion, followed by a series of private sessions with the mediator shuttling between the two , and with occasional joint discussions where appropriate, but especially at the the conclusion.
* The mediator's approach is non-judgmental and is not intended to impose a solution on the parties, but rather to assist the parties to come to their own solution.
* The focus is on a solution that is acceptable to both parties.
* By and large, it is not the role of the mediator to try to pre-empt the way in which a court or tribunal might determine the legal issues. The objective is to reach a solution that gives 'benefit', and is acceptable to, both parties rather than to decide on who is 'right' or 'wrong' in accordance with the law. Legal issues may play a part but, largely, in order simply to identify the risk to each party in winning or losing at court if a solution is not found.
* Nothing said or offered in the discussions is in any way binding on a party unless a mutually acceptable solution is reached, in which event a binding agreement will be drawn up and signed.
* All discussions are confidential to the mediation (so far as is allowed by law).
* Nothing said in private discussion with a party alone can be revealed to the other party save with the express consent of the first party.
* To assist in achieving a satisfactory resolution, the initial objective of the mediator is to clarify all the facts and ensure both parties understand them correctly so as to remove any misunderstandings and misperceptions. The mediator will also need to empathise with each party (fully understand their view of the matter without necessarily agreeing with them) so as to recognise what the dispute means to them both on a practical and on an emotional level. The mediator will also try to encourage both parties to consider possible solutions and may occasionally use his or her experience to prompt them to consider possible solutions. Mediation is best conducted as early as possible in a dispute before the relations between the parties deteriorate too far and especially before litigation is commenced. However, if matters do go to court , mediation is often useful at any stage.
Courts encourage litigants to consider mediation. The English courts have occasionally 'punished' a party who wins his or her case in court if it is established that they unreasonably refused an offer of mediation by the other party. They do this by denying them an order that the losing party pays their legal costs. The denial of costs can make a victory in court very hollow and expensive.