Mediation is known as a voluntary and confidential form of alternative dispute resolution. It is a way of resolving disputes between two or more parties. A Mediation will normally take place through a mutually appointed independent Mediator who assists the parties to negotiate a settlement of their dispute and which should result in a binding agreement being reached between the parties.
The Mediation process is private and participation is usually voluntary where the Mediator’s role is to act as a neutral third party to facilitate a process towards settlement.
The benefits of Mediation include a substantial saving in time and costs for the parties in resolving a dispute. Whilst matters raised during a Mediation remain strictly confidential if no agreement is reached, the procedure allows the parties to be more open than they would normally be in Court.
Unlike Court proceedings where a Judge makes a decision, the parties have more control over an agreement which they will both be prepared to reach and enter into, and if a settlement has been concluded and an agreement entered into between the parties, this would be fully enforceable as if made by the Court.
The fact that both parties are prepared to agree to a Mediation is a very good sign that the parties recognise that there is a necessity to resolve a matter, and parties should be encouraged to use this process where possible for resolving all types of disputes.
There are a number of points to bear in mind when preparing for a Mediation which should be considered at the earliest opportunity, and although the following 10 tips are not exhaustive, they should all be borne in mind.
1. It is vital that both parties and their representatives are present, are fully informed of the dispute and have the appropriate authority to resolve it.
2. Parties should be properly prepared for a Mediation and spend time considering tactics and their approach. Parties should consider all options available and alternatives and what goals they wish to achieve.
3. The Mediation should take place at a location which is convenient for both parties, has all necessary facilities and refreshments and there should be adequate space and room to retreat to, as the parties may be spending a large amount of time at the location.
4. Presentation is important for parties and their representatives and parties should communicate to the other party that they are attending the Mediation in order to conclude matters for the benefit of all parties.
5. Any documents to be relied upon at the Mediation should be presented and be available with sufficient copies for the other party and the Mediator. Parties should be prepared to explain their position in the Mediation and be aware of all facts.
6. Going to the Mediation with an open mind is vital and parties should expect to learn matters that they may not be aware of. They should be willing to digest this information and to act accordingly.
7. Parties should not be aggressive or offensive as this will not assist the negotiation process. Being polite and firm in conviction is as important as the parties or their team not losing control.
8. Parties should be flexible and imaginative and look for answers to any problems that may arise. Seeing matters from the other parties point of view will assist the process.
9. Make sure the Mediator conveys the parties positions throughout the Mediation to enable the parties to come to an informed decision.
10. Finally, parties should be flexible and open throughout the Mediation and be prepared to take time out of the Mediation to reflect and look at matters in the long rather than the short term.
It is worth noting that Mediators are neutral and will not take sides. They cannot give advice to either party although they will use their skills to get both parties to assess and consider both their factual and legal positions with a view to reaching a settlement and conclusion to a dispute.