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Mediation

What is Mediation?

A non-adversarial, out-of-court alternative for resolving disputes between two or more parties in conflict. It is a process in which the parties to a dispute, with the assistance of an independent and impartial third person (the Mediator), identify the issues, develop and explore options, consider alternatives and endeavour to reach a mutually beneficial solution to their conflict.

As the costs of pursuing legal avenues to resolve disputes continue to rise, more people are turning to Mediation as a more cost effective, efficient, quicker, friendlier and less stressful alternative to litigating. With a high success rate, all parties benefit from this co-operative, voluntary approach to resolving conflict. It can preserve or restore important relationships and may avoid the need for expensive, stressful and lengthy legal action.

Mediation looks to the future. The objective for all parties is to work out a resolution they can live with and trust. The focus is on solving problems, not necessarily uncovering the truth or imposing legal rules, as in a court case where a judge or jury reviews the past to determine who was right and who was wrong. Based on their decision, either a penalty or award is imposed.

The mediator however, does not have authority to impose a decision or force an outcome, so nothing is decided unless all parties agree to it. This greatly reduces their tension and the likelihood of parties’ clinging to an extreme position. The parties are empowered to decide on their own ‘win-win’ outcome and if mediation is successful, usually enter into a written agreement, which sets out the terms of settlement.

What is the Mediator’s Role?

The Mediator is trained to facilitate the communication process between the parties by skilfully navigating through difficult and highly emotional issues, bringing an independent perspective to the table in a safe, supportive and confidential environment. The mediator acts impartially, assisting the parties both jointly and separately to reach consensus. One of the mediator’s strengths is the ability to create a more productive discussion than the parties could have had by themselves. Using a variety of communication strategies and facilitation techniques, the mediator helps the parties determine facts; keep focused and generate options to assist them in finding a solution. Often the mediator has a lot of background knowledge of the issues and type of dispute.

The mediator’s role includes:

• facilitating structured communication between the parties;
• assisting the parties to work out what the dispute is about by isolating the issues involved;
• encouraging co-operative problem-solving and discouraging the parties from taking entrenched positions;
• helping to determine where the parties have common, compatible and conflicting interests and where appropriate, selectively sharing such information with the other parties;
• systematically exploring issues and mutually beneficial solutions by focusing on the interests and personal needs of all parties;
• generating options that meet the needs and interests of all parties in an effort to resolve the dispute;
• managing and making decisions about the process to achieve a ‘win-win’ outcome for all parties.

Although mediators may at times provide ideas, suggestions, or even formal proposals for settlement depending on what has been agreed, the mediator principally acts as a "process person," and helps the parties set an agenda, identify and reframe the issues, communicate more effectively, find areas of common ground, negotiate fairly, and hopefully, reach an agreement. A successful mediation effort has an outcome that is agreed to, and ‘owned’ by the parties themselves.

The Mediator does not decide the outcome of the dispute or impose any binding decisions. Most agreements are compromises and parties do not always get everything they would ideally like. A successful outcome will be an agreement that all parties can live with and abide by. The mediator will not advise on the solution or encourage or coerce a party to accept a particular solution; provide legal advice or advice on legal avenues available to the parties or on the prospects of success.

If you have further questions, or require more information and advice on how we may be of assistance in your particular situation, we invite you to contact us directly.  You may also benefit by subscribing to our free bi-monthly newsletter which provides tips and advice on topics such as communication focus, collaboration, mediation, negotiation strategies, questions and answers from subscribers and clients, recommended reading, case studies and website updates.  Full of practical "how to" tools and techniques for communicating more effectively and achieving satisfying outcomes.  Please visit our downloads page for a free sample.