Overview

 

Introduction

Mediation is a process whereby an independent, neutral Mediator(s) assists the parties to come to agreement through a collaborative process. The Mediator’s role is non-judgmental and non-directive. The Mediator is neither judge nor arbitrator and does not adjudicate or give decisions on the rights or wrongs of the actions of the parties. The Mediator supports the parties in identifying their issues and needs and in exploring how those needs can be addressed and how they might come to agreement. (MII Definition of Mediation)

Mediation provides a confidential and safe environment for the parties to air their issues and concerns with the other party at first hand and to hear the complaints, issues and concerns that are being made against them. The content of the mediation is confidential to the parties and the Mediator and can only be shared with a third party with the expressed permission of all parties except where natural disclosure would occur. The parties and the Mediator agree the terms of the mediation at the outset of the mediation. The MII recognises that there are many schools of mediation and the MII does not advocate any one approach or process over another. The format of the mediation process may vary depending on the Mediator and the type of dispute. Sometimes there are pre-mediation meetings and sometimes the parties spend most of the mediation in the same room and in other cases the parties may never be in the same room or for only a very small part of the mediation.

 

Benefits of Mediation

  • Less Adversarial
    Mediation is an interest-based process based on consensus and collaborative agreement.
  • Lower Cost
    Both in monetary and personal terms, mediation is inexpensive compared to rights-based interventions.
  • Preservation of Relationships
    Mediation works towards long-term solutions for the disputing Parties, and where there is an ongoing relationship places significant emphasis on how they will interact in the future.
  • Control
    Mediation belongs to the Parties. The disputing Parties control the content and outcome of the mediation.
  • Creative Solutions
    Mediation allows for creative solutions which may not be available in rights-based processes.
  • Protection of Privacy
    The confidential nature of mediation allows the Parties to negotiate freely and productively without fear of publicity.
  • Swift Settlement
    Mediation can be scheduled soon after a dispute arises and following the pre-mediation meetings, can often be concluded in a single day.
  • Preservation of Options
    Engagement in a mediated intervention does not preclude participation in a different dispute resolution process.
  • Low Risk
    Settlement potential is high and there are benefits to participating in the process
    for all.

 

Mediation Process

Where there are pre-mediation meetings, they are generally one-on-one meetings where the Mediator meets separately with each party to explain the process, get an overview of the situation and ascertain the ability and willingness of each party to engage in a mediated intervention. If the parties are to be represented during the mediation, the Mediator may meet those parties who will attend in a support capacity at this stage, e.g. union representatives, lawyers, supporters.

Where all parties have agreed to engage, a written Agreement to Mediate will be discussed and agreed between the parties and the Mediator and it will set out amongst other things that the mediation is confidential, that it is a voluntary process and that any party or the Mediator may leave the process at any time. Sometimes the Agreement to Mediate is agreed and signed before the day of the mediation and on other occasions it will be signed at the start of the mediation.

Except where a third party is paying the fees of the mediation, the Mediator and the parties should agree the fees before the start of the mediation.

While the parties control the content of the mediation, the Mediator is responsible for the process and during the course of the mediation will work with the parties - sometimes in joint and sometimes in separate sessions. The mediation process improves communication, narrows outstanding issues and defines areas of agreement, leading to successful resolution in about 80% of cases. Where full agreement is not reached, generally parts of the dispute are resolved, leaving fewer or less extreme differences to be resolved.

 

Mediated Agreement

In general, when a mutually acceptable agreement is reached, the parties, with the help of the Mediator, will draft an agreement detailing the terms of the settlement. When all parties agree to its terms, the parties, and sometimes the Mediator, sign the written settlement. Parties may, where appropriate, get expert advice prior to the signing of their agreement.

The written agreement is binding on the parties unless it is expressed not to be so. Parties need to tell the Mediator if what they have agreed is not to be binding on them. A legally binding mediated agreement is a contract and can be sued on in the event of a breach.