What is mediation?
In very simple terms, a mediator is a neutral facilitator. He or she can be from any walk of life, but with the common factor of having been trained and accredited by one of the accredited bodies. There are a number of ways to conduct the proceedings, and it can be tailored to each dispute, and that in itself is one of its qualities.
The mediator does not judge and has no power to impose a settlement. Their role is to listen and question and gain information until they can find a place within the facts that there may be a solution that can be gently offered to each side. It may include other things than the payment of money. In fact, it can include just about anything that the parties would wish for. That can include rearranging future working relationships, resolving other issues at the same time, working through a project to its natural conclusion or parting on better terms.
It can be set up by agreement in a matter of weeks. It can then be over in a matter of days and the cost saving, over more extended forms of dispute resolution, can be significant.
Workplace mediation is relatively new, but there have been recent Government calls for reforms in employment law and its position within this can only strengthen.
As a process it stands alongside arbitration, adjudication and the formal court process. It does not replace them but as a tool in the box of dispute resolution, it is invaluable.
We can assist in your understanding of the process: how you can use it and if you can make it part of your business processes.
We can also assist in setting up mediation for our clients. We have knowledge of experienced mediators with a proven track record of solving complicated and emotive disputes.
Or we can mediate your dispute for you.
How does mediation work?
The parties establish their cases and sign a confidentiality agreement.
In a nutshell, the parties may be based in separate rooms within a building and the mediator may go backwards and forwards several times to pass on each sides’ points.
The mediator will look at the best alternative to negotiated agreement (batna). This means you look at the best you could get in court, if you don’t get the result you want. They will also look at the worst alternative to negotiated agreement (watna).
The cost is usually split between the concerned parties.
Should I use a mediator?
If you have a dispute you think may benefit mediation please contact us and we can advise you on how best to proceed including locating a mediator and representing you at the mediation.
Although a mediator can cover any area, it can be helpful if they have previous experience in that field.
What are the benefits of using mediation?
Courts are inevitably expensive, particularly when you take into account witness statements, an exchange of documents, compiling experts’ reports etc . It can also take 12 to 18 months to get to trial.
With mediation, it is likely parties could reach an agreement in at least half the time and half the cost.
It can also enable parties to protect their confidentiality.
It can help protect your assets in the long run. Business partners, for example, could risk losing a business worth hundreds of thousands of pounds over a dispute. But with mediation, both parties can stake their claim and an agreement can be reached which will protect the future of the business.
Mediation vs Court
Mediation is a way of resolving disputes without the need to go to court. It involves an independent third party, a mediator, who helps both sides come to an agreement.
It is an assisted, confidential negotiation, which enables people to find their own solution.
Mediation gives you more control than going through a court or an arbitrator, which will impose a third solution. Through mediation you will have an input and can at least partially control the outcome.
The main principles are that it is voluntary, impartial, confidential and decision making lies with the concerned parties.
What is the role of the mediator?
Mediators help parties reach a solution which is agreeable to those concerned. Mediators avoid taking sides, making judgements or giving guidance.
Who can act as mediator?
Lay practitioners may be involved, but you may wish to use a professional, neutral party. Disputes can become very heated, even commercial ones, and it is beneficial to have someone experienced in negotiation at your side.
Lawyers negotiate all the time, so they have learned how to exchange points effectively. They can also establish a case and build up rapport.
What if the parties cannot reach an agreement?
Mediation is a voluntary process and will only take place if both parties agree. It is a confidential process where the terms of discussion are not disclosed to any party outside the mediation hearing.
They can still go to court but details about what went on at the mediation may not be disclosed or used, except perhaps if there is later a dispute as to whether an agreement was reached or not.