What is Mediation?

Legal Corner in The Post January 2019

What is Mediation?

The term “mediation” broadly refers to any instance in which a third party helps others reach agreement. Mediation has a structure, timetable and dynamics that ordinary negotiation lacks. The process is private and confidential and participation is voluntary.

A popular form of Alternative Dispute Resolution (ADR)

Mediation is the most popular and frequently used form of alternative dispute resolution.  Its popularity is increasing. The courts actively encourage the parties involved in court proceedings to consider alternative dispute resolution.  When a party to court proceedings refuses to participate in mediation without good reason, there is a risk the Judge will order them to pay the other party’s costs even if the other party has lost the court case. 

How does mediation work?

The most important part of mediation is that the process is led by an independent third party who is a qualified mediator. 

A mediator is trained to use different techniques to help the participants to open, or improve, dialogue and empathy between them. A mediator is facilitative. She/he manages the interaction between parties and encourages open communication. A mediator will not provide prescriptive advice to the parties, and will not say “You should…”.

The mediator acts as a neutral third party and facilitates rather than directs the process.

What can you expect if you take part in a mediation?   

There is no formal requirements about the structure of a mediation. Each mediator will have a process or structure that they follow.

Before the mediation, the mediator will contact the parties and tell them what information he/she would like them to provide – usually this is a summary of the main points in dispute. 

In most instances the mediation will take place at a neutral venue that can accommodate the different parties in separate rooms.  The mediation will usually be booked for either a half day or full day. 

Unless the parties strongly object to being in the same room as each other, the mediation will start with a joint meeting to enable the mediator to talk to everyone at the same time and set the ground rules for the day. 

This will be followed by the parties separating into their individual rooms so the mediator can talk to them privately.  Through the session the mediator will move between the parties using his/her skills to narrow the issues in dispute and explore avenues for agreement.  

Benefits of mediation

Mediation is off the record and things said at mediation cannot be referred to in subsequent court proceedings if it is unsuccessful.  This gives everyone an opportunity to “have their say”.

The mediator is not constrained by the legal process and can encourage the parties to consider terms or offers that cannot be ordered by a Judge. 

Mediation is less expensive, less stressful and can achieve resolution much more quickly than court proceedings.   

Rebecca Weare at Start Point Law specialises in dispute resolution and encourages her clients to try mediation.  In her experience 100% of the cases she has taken to mediation have resolved without need for a final court hearing.