What is Mediation?

 

Mediation is a process by which parties negotiate with one another with the assistance of an independent and neutral person called the mediator.

Hence mediation is a special form of negotiation.

And so what is negotiation?

Negotiation is a discussion or dialogue between two or more parties seeking to reach agreement for their mutual benefit or that of others.

Parties use the services of mediators in order to help them with their negotiations and increase the likelihood of reaching  agreement.

Mediators are not like  judges or arbitrators. Judges and arbitrators are involved in  adjudication, not negotiation. They assess the merits of what each party has to say, and then make binding decisions, whether the parties like those decisions or not.The parties therefore focus their persuasive efforts on the arbitrator or judge.

In contrast mediators manage negotiation, guiding the discussions towards agreement. They do not make decisions for the parties. They cannot impose any decision on the parties. The parties therefore have to persuade each other, not the mediator, of the merits of their arguments and proposals.

Mediators may make suggestions to the parties as to how best to conduct themselves, and may sometimes comment on what is said and proposed. But it is for the parties, not the mediator, to decide what agreement they should enter into.

Although at times  the law explicity or impliedly requires parties to attend mediation, once at the mediation a party may withdraw at any time. That may not however be a wise step and should be discussed with the mediator before it is taken.

Mediators must be fair and honest towards all the parties. They must not favour one party over another. They can however challenge what is being said or proposed by one or more party, especially if that party is not being honest, sensible or realistic.

Most mediation takes place on the basis of privacy and confidentiality. This means that unless otherwise agreed, all those attending the mediation conference, including the mediator, must not tell any other person what is said and decided in the course of the conference. This encourages frankness about what can be highly personal and sensitive matters.

Most mediation also takes place on a "without prejudice" or privileged basis. This means that if the negotiations are directed towards settling a matter which is before a court or other judicial body, or which might be in the future, the court or other body is not permitted to be told about what occurs in the mediation conference. This enables frank discussion and the making of proposals involving concessions and compromise, in the assurance that none of this will come to the notice of the court or other body if settlement is not achieved. Concessions and compromises are made for the purpose of the mediated negotiations only, and do not bind or prejudice those making them in any subsequent court or other judicial proceedings.

There are as many approaches to mediation as there are mediators. Each mediator brings his or her own unique combination of personality, attitude, commitment, skills, ability and experience to the mediation table. But in the greater part mediators apply the same broad structure to the mediation sessions they conduct. Typically this involves initial comments from the mediator, opening statements from the parties, the identification of the issues to be discussed, the discussion of those issues, the generation and consideration of settlement options, and then the reaching and recording of agreement.

During the course of a mediation conference, the mediator may wish to "caucus" with a party, that is to say, talk with that party on their own. During these sessions the mediator may receive information from that party on the condition that it is not shared with any other party. This assists the mediator decide the best way for the mediation conference to proceed.

Overall however, mediators tend to favour "joint sessions" in which all the parties are together in the one room at the same time. That way everyone sees and hears for themselves not only what is said, but how it is said.

On occasions the mediator may "shuttle" between the parties, passing on to them what is said or proposed by the other party or parties. This usually occurs towards the end of the mediation process, following detailed discussion, when the parties are making a series of proposals and counter proposals, often in rapid succession.

It is important that the agreement reached at the conclusion of the mediation be recorded in writing. This is in order to ensure that there have been no misunderstandings, that all points have been covered, that the terms of the agreement are clear and unambiguous, and there is documented evidence of the agreement which can be used for enforcement purposes if required.

What is a mediator?

The benefits of mediation

Is mediation suited to your dispute?

What is the difference between mediation and arbitration?

What is the difference between mediation and facilitation?

Family Dispute Resolution (FDR)

Thrashing Bashing or Hashing?