What is mediation?
Mediation is a process in which the parties to a dispute, with the assistance of the Mediator, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. A Mediator’s role is to facilitate discussion between the parties to isolate the important areas of dispute and to explore options and solutions. A Mediator is an independent, neutral person who conducts the dispute resolution process in an impartial manner.
Mediation may be undertaken voluntarily, pursuant to a court order, or subject to an existing contractual agreement. Mediation is a confidential process and is conducted without prejudice to any legal rights which the parties may have.
Mediation has many advantages:
- Mediations are confidential, and therefore the dispute and its outcome remain private.
- Mediations can be organised quickly and be at a time and place convenient to the parties.
- It is often less expensive than litigation.
- The parties maintain control of the dispute and the outcome.
- Mediation can provide a means to resolve conflicts at an early stage.
- Agreements do not need to be confined to legal remedies.
- Resolution of the dispute may be based on the needs and interests of the parties.
- Relationships can be preserved.
What is involved in a mediation?
Once the parties have reached agreement on their mediator, when and where they will hold their mediation and the sharing of costs, the mediator will assume control of the process. It is usual for the costs of the mediator and venue hire to be shared equally between the parties.
The mediator may convene a preliminary conference between the parties to provide an explanation of the mediation process, preparation required prior to the mediation, the confidential nature of mediation and the need for the parties to act in good faith.
A neutral venue is arranged for the mediation. The mediator will ask each party to explain what it is that has brought them to mediation, and from that information, the mediator will identify the issues which are in dispute. The mediator may meet with each party separately to explore any underlying issues, and these private meetings remain confidential. If the parties reach an agreement on the issues in dispute, the terms of the agreement are recorded and signed by the parties. This agreement becomes a legally binding document.
If the parties are unable to reach a consensual agreement about the issues and the dispute escalates to litigation, all discussions during the mediation, with the mediator and all documents prepared for the purpose of the mediation, remain confidential.