What is Mediation and Why?
We believe that the adversarial, winner takes all, litigation model has enormous downsides. There is another method, a process where the parties themselves determine an outcome that serves their individual needs and interests. Mediation.
We find that persons litigating a dispute via the legal process often discover that the delays and costs of the justice system have placed it out of reach.
We need deep pockets to litigate, and even then, we are unlikely to get our day in court. Although we may have the appetite and means to persist, clients generally find cases are settled “on the steps of the court”, by lawyers in last minute negotiations. Leaving behind significant financial and emotional costs, and a negotiated solution. A solution that could have happened at the beginning of the process rather than at the end.
Whether you are about to enter the legal process, or are already fully immersed in it, there may be another way out. Your dispute could be suited for resolution by mediation
Mediation is a successful and accessible method for resolving disputes. It is a structured, confidential process in which disputing participants, assisted by an impartial person with specialised skills (the mediator) self-‐determine a negotiated outcome.
There are two important characteristics of mediation that are designed to remove risk, and to favor a successful outcome.
- The process is confidential. In a sense it is secret, in that anything said to the mediator by a party in private session cannot be revealed to the other side. This allows a party to explore potential solutions with the mediator in a risk-free environment.
- The process is characterised by without prejudice discussions. This means if a settlement is not achieved any comments, concessions, offers, proposals or suggestions made by parties during the mediation are not binding on them, and cannot be used or referred to in any subsequent court proceedings, should the mediation fail. Furthermore, they are confidential, they remain within the four walls of the mediation and may not be revealed to anyone outside the process either during or after the mediation.
The features of mediation are designed to create the best environment for the participants to reach the best possible settlement of their dispute. If the mediation fails to produce an agreement, the parties are free to pursue their rights via the legal process, which in a sense has been paused for the moment.
In litigation, there are serious downside risks: runaway costs, emotional distress, and an uncertain result. The dispute is taken out of the hands of the parties and decided by a judge, who imposes a potentially unpredictable legal solution with a win/lose outcome. The solution is not based on the parties’ true interests, which are rarely considered, or whether the legal outcome is what the parties actually want. Any costs order almost certainly will not cover actual costs and significantly erodes any award.
In mediation, the parties are not limited to the remedies prescribed by the operation of law and are free to choose an outcome that is oriented more to their future. The mediator makes use of specialised skills to assist the parties to arrive at a self-determined solution.
In an empathic environment, the mediator facilitates a re-analysis of the dispute by each party separately, focusing on the party’s needs, interest and concerns. In a private, non-judgemental, supportive atmosphere the parties explore a range of options and potential solutions to their side of the dispute.
The mediator becomes aware of emerging common ground, and the mediator asks permission to reveal constructive comments to the other party. All input and interactions remain within the four walls of the mediation, both during and afterwards.
Either jointly or separately, the mediator facilitates an exchange whereby common ground is expanded sufficiently to form a solution to the dispute. A settlement agreement is drafted. Cost is low, and the parties emerge with a self-generated solution that meets their needs, interests and concerns and maintains their self-esteem.