Control

“For me, control is the single most important benefit of using Mediation to resolve a dispute.  People in dispute often feel like they are losing control of important parts of their life, in their workplace, in their family life, in their finances.  The traditional mechanisms for airing differences – lodging complaints, bringing legal actions – these often only serve to intensify that loss of control;  the people at the heart of the dispute find that they no longer have any say in the outcome, others will decide their future.  The biggest surprise for participants in Mediation is that they, together, control the process, the timetable, the issues and the outcomes.”

At the core of the MII approach to Mediation are the beliefs: that the parties to a dispute are in the best position to resolve it. that given the right circumstances even people entirely alienated from each-other can reach a mediated agreement. that non-mediated, imposed outcomes are not resolutions; imposed outcomes often simply set the scene for further conflict. the necessary aspect of cooperation involved in Mediation greatly assist participants in identifying the real issues and arriving at effective solutions. that a mediated resolution is a better resolution because the parties in conflict have crafted the solutions themselves.

Mediation promotes self-determination and empowerment of the participants. As a participant you are fully engaged and involved in every part of the process. You can find practical and flexible solutions which reflect your needs and the reality of your situation. Having a solution imposed on you by a Judge, Jury or other decision maker will often place you in the position in having to alter your reality to match the outcome rather than the resolution reflecting your reality. It comes down to a simple question; which process do you think will result in an outcome you can live with, one imposed upon you or one you have arrived at through your own efforts and ideas through a negotiated settlement? In Mediation, nothing can happen without your voluntary and fully informed agreement.

The participant’s control of the Mediation process is complete and comprehensive:

• you will be consulted on all aspects of the Mediation from beginning to end.
• you will be fully informed of the other party’s position throughout.
• you will shape the structure of the Mediation process appropriate for your dispute.
• your needs will determine the timetable and location for the Mediation.
• your sensitivities and concerns will be respected in the process adopted.
• no decision can be made or outcome arrived at without your complete agreement.

Do not think that this high level of participation means that you have to do all the work! Sometimes having a large amount of control and participation can seem intimidating. At all times the parties will have the assistance of the Mediator. The Mediator will provide their expertise in suggesting the structure and process of the Mediation. They shall facilitate and guide the parties throughout the process – they are always involved to encourage and assist an agreed outcome.

In Mediation, no-one can pressurise, intimidate or force any aspect of the process on you against your wishes. Throughout mediation you are protected and respected. Civilised, polite and respectful behaviour is expected of all the participants. The Mediator will ensure that no party is made to feel uncomfortable or subjected to any pressure or insulting behaviour. MII mediators are particularly trained to ensure the safety and protection of participants at all times and to foster an atmosphere of cooperation and civility.

At the MII we believe that placing control in the hands of the disputants is the key to finding resolutions that stand the tests of life and time. Disputes often involve issues that will directly effect the lives of the disputants for a long period of time. By empowering those at the heart of the dispute to find an agreed resolution Mediation provides the best possible chance that the outcome will be effective. Mediation invites YOU to be fully involved in the entire process and makes YOU the most important influence on the outcome. Why not use a process which actually values your role and contribution? Mediation empowers you to take your destiny in your own hands and determine your own future.

Cost and Time

When it comes to finite resources such as time and money there’s simply no contest; Mediation costs less and happens more quickly – it really is as simple as that. Then on top of that there are the less tangible but important benefits of being a less stressful, more positive process which produces outcomes which are much more likely to succeed over time. From any objective standpoint Mediation ticks all the boxes.” In life the rule usually is, if you save on time and money you sacrifice product and outcome. Mediation is the exception to prove the rule; you can save both time and money while maximising your opportunity to secure the best possible outcome.

Reasons why Mediation is quicker and more cost-effective:

• Some State-funded mediation services are free (such as the Family Mediation Service).
• Parties share the costs of one mediator (rather than engaging representation on each side).
• Mediation can take place once the parties are ready – there’s no waiting for court time.
• There are no significant delays such as routinely take place in litigation.
• Mediations are generally much cheaper than court proceedings and take place in a much shorter period of time.
• It is typical for a mediation process from instigation to conclusion to take place over a matter of weeks.
• The Mediation meeting itself can take place and have the issues fully explored in one day.
• Cost is further reduced by the agreement reached working as an effective resolution.
• With a skilled MII mediator, an open mind and a willingness to engage and listen, Mediation can swiftly resolve even difficult disputes. When parties have forged their own resolution they own it and are much more likely to adhere to it.
• An effective mediation saves substantial amounts of time and money and provides peace of mind.

Information on Mediator’s costs. Mediators charge in a variety of ways (daily rate/ hourly rate/ flat rate). VAT may be chargable on these fees. Mediators may charge for preparatory work as well as additional outlays and expenses (such as hiring a venue and travel costs). You may be required to pay fully in advance, partly in advance or after each session. Always ask for full details on costing and fees before signing an Agreement to Mediate.

Confidentiality

“Confidentiality is a really important feature of Mediation. Participants find the privacy of the process highly attractive – it certainly plays a big part in the ‘nothing to lose’ approach that many people have to Mediation. If it works confidentiality protects the outcome to make it effective. If it doesn’t work no-one will even know it happened. Confidentiality is the driving force behind a lot of Mediation’s successes.” All aspects of a Mediation are confidential and remain known to only the parties and the Mediator. All participants are obliged to keep confidential everything that transpires during a Mediation. The Mediation agreement is confidential. This clear rule pertaining to privacy of process and outcomes is secured by:

• the Mediation taking place in private, behind closed doors.
• there being no recording of the Mediation meeting.
• the prohibition on publicising any aspect of the Mediation.
• the role of outsiders to the process being determined only by agreement between the participants.

Confidentiality and privacy are powerful encouragement to agreement – there is nothing to be gained from posturing, no audience to perform to and no scrutiny to impose pressure on the parties. The fact that everything remains private makes mediation a very attractive and much less stressful experience than going to court. Confidentiality encourages participation and facilitates the process of cooperation.

Can details of a Mediation form part of later court proceedings between the parties?

No, in the vast majority of situations the confidentiality of a mediation is absolute and cannot be used by either party or any other person in litigation. If this wasn’t the case it would provide a powerful disincentive to try mediation in the first place. Mediation closes no doors and does not preclude the parties from utilising other processes should the Mediation fail to resolve the dispute.

Are there any circumstances in which Mediator’s can be obliged or compelled to disclose details of a Mediation?

Yes, in very limited circumstances when there is material pertaining to the well being of children or actual or threatened criminal acts confidentiality may be set aside. If you have any concerns about confidentiality ask your mediator to fully explain the position – if further issues arise seek legal advice.

Flexibility

“I have never worked with a process as flexible as Mediation. Disputes involve an unquantifiable number of different situations, different people with varying concerns and pressures. Being able to assess all those differences, all those variations before determining the structure of the process sets up the participants to succeed in a way that no other dispute resolution technique can deliver. Being able to deliver that felxibility, inspiration and imagination to the difficult process of finding solutions to the key areas in any dispute is the most important factor in making Mediation so successful in resolving disputes.”

Flexibility of mind

Mediation invites you to approach your dispute and the process to resolve it with an open mind. The mediation process is open and ready to be shaped to meet the needs of the participants and the peculiar details of their dispute. The Mediator remains impartial and open to the contribution of the participants. This openness of both process and participants is unique to Mediation. Everything and anything can be put on the table for consideration (within the ethical and legal parameters of the process ). Flexibility is mediation’s greatest strength. Removing barriers to resolution often requires inspiration and imagination. Parties to a dispute have arrived at entrenched positions, as is ususal in conflict. Litigation can encourage those positions to become further entrenched and deepen the conflict – making those involved more inflexible, more adversarial. Encouraging an open mind lets the parties take a step back from conflict and frees them from any predetermined position.

Flexibility of process

The MII approach to Mediation encourages structural and procedural flexibility. We do not encourage a set format for Mediation. MII Mediators are trained in various models and processes which are useful to different types of disputes but the key strength of Mediation is retaining flexibility to ensure that the process meets the needs of the individuals concerned. This flexibility can arise in many ways:

• Meetings can involve the parties together or they can meet the mediator separately.
• Mediation can be conducted face to face or through communications facilitated by the Mediator.
• Mediation can be halted or suspended at any time.
• Advice can be sought by any party at any time.
• Parties can always request time to consider their position (as long as there is no pressing need already agreed)
• Participants can submit any material they feel is relevant.
• The time, location and structure of the Mediation can be tailored to the particular needs of the participants.
• If any expert advice or investigation is required this can be facilitated by the Mediator.

Flexibility of outcomes

Our traditional methods of ending disputes often involve a winner and a loser, endorsing one party as ‘right’ while another as ‘wrong’. This often misses the point and fails to provide a workable solution to their differences. Mediation is the only process during which the parties can look at all the circumstances of their dispute in a measured way and consider any possible solution that they can agree on. That solution could be incredibly simple and predictable or it could be complex and completely unexpected. Mediation sets no boundaries in the search for meaningful resolution of disputes.

Relationships

Disputes often involve fractured relationships. Sometimes quite inconsequential differences can become much greater because of the breakdown in communication and respect between the parties. As a lawyer I’ve seen the adversarial system turn disputes into conflicts and ruin the relationships of those involved permanently. Mediation does exactly the opposite by de-escalating the dispute into a negotiation rather than escalating it into a war. As a process Mediation encourages mutual respect and provides a basis for people to interact in the future in a useful, civilised way. I’m not claiming that Mediation suddenly makes everybody friends again, but I’ve seen it happen!”

At the heart of everything the MII does is the belief that conflict and confrontation, pitching people against each other in an adversarial contest, is not the appropriate way to resolve disputes. This outdated and ill-advised process deepens divisions and widens the gulf between people. Whether disputants are already known to each other or are relative or complete strangers conflict creates antipathy, dislike and resentment. Adversarial procedures and imposed outcomes can deepen these resentments and destroy any chance for future cooperation.

Mediation in interpersonal disputes

Disputes often arise when people are closely connected. Whether its a family connection, a friendship gone wrong or a dispute between colleagues, the fact that people have been connected for some time prior to the dispute can increase antagonism and entrench positions. Escalating the dispute into a conflict, legal or otherwise reduces the chance of ever making these relationships work in the future. If you live with, work with or have a family connection to a person you have a dispute with the way you resolve that dispute will determine the future of that relationship.

• Family disputes – in no other area is safeguarding relationships more important. Mishandling contact, custody or marital disputes can lead to life long antagonism, divided families and negatively affected children and relatives. Even where a relationship has irretrievably broken down participants can form a ‘mediation relationship’ and find common ground so that they can deal with each other and their family issues in the future.
• Workplace disputes – unfortunately we all spend a lot of time at work – we need to be able to get along with our colleagues; when disputes arise they can lead to a spreading of division in the workplace, lost productivity and sometimes to dismissals or the loss of effective employees. Mediation redirects attitudes, reformulates communication and often leads to reconstituted, functioning working relationships.
• Community disputes – being able to resolve disputes in a way that means people can live together is particularly important in community disputes. Once people split into factions conflict can escalate swiftly doing permanent damage to community relations and creating the conditions for new areas of conflict. Mediation presents cool heads and conciliation to resolve matters before they get out of hand.
  Even in disputes that involve less personal relationships, such as commercial disputes, even when the parties have never met, the human capacity to foster resentment and enmity once an area of dispute is established is limitless. Mediation brings people to the table, personalises their positions for each other to understand and encourages them to work together to resolve their differences.

The Mediation relationship

Mediation brings the parties into a process where they effectively take a ‘time-out’ in their conflict. It requires an open mind and a willingness to listen and consider the other participant’s position. This creates what we see as the ‘mediation relationship’ – the relationship which is formed between the participants for the duration of the mediation until the dispute is resolved. We have seen this relationship formed between disputants time and time again, even when at the outset they couldn’t bear to be in the same room. Ultimately given the right guidance in the Mediation context parties have been able to work together to solve their issues. The mediation relationship is formed by:

• The Mediator’s invitation to enter the process with an open mind.
• The willingness of the parties to listen and be listened to.
• The requirement that the Mediation is conducted with respect and civility.
• The contextual and atmospheric de-escalation from conflict to conciliation.
• The principle that the parties are working together whether directly of indirectly to find a resolution.

Mediation creates useful working relationships to resolve disputes. It avoids deepening divisions through conflict. It brings people together through conciliation. We’ve seen it happen over and over again – people learning how to work together to resolve their differences. We are proud of the fact that mediation fosters and promotes cooperation and mends fractured