Mediation
Mediation, sometimes referred to as facilitation or conciliation, involves structured settlement negotiations led by a neutral third party who has been selected by agreement of the parties. Mediation enjoys a very high success rate. Skilled mediators are generally able to achieve settlement in over 85% of the cases referred to them, when the parties come willingly to the mediation session. The mediator’s job is to skilfully guide and facilitate the negotiation process, but, unlike a judge in a courtroom, the mediator has no decision-making power. While the mediator may occasionally suggest a resolution, known as a mediator’s proposal, the mediator may not impose a resolution on the parties.
A skilled mediator thoroughly understands the negotiating process. Parties sometimes select mediators who are also knowledgeable about the business or field in which the dispute has arisen. While this can be helpful, it is rarely as important as the individual's mastery of mediation skills. A good mediator can assist the parties in evaluating the strengths and weaknesses of their own and their opponent’s case, understand their opponent's perspective, develop creative solutions, and deliver difficult messages to the other side more effectively than they can sometimes be conveyed directly. When a party exhibits overconfidence in its position, the mediator can often administer a much-needed reality check. Skilled mediators use their understanding of human nature, together with a variety of techniques, including humour and highly-nuanced and selective communications, to gradually bring disputing parties around to a consensus.
The mediation process is flexible and usually quite informal. It can be designed around the needs of the parties, their individual circumstances, and the nature of the dispute. Mediation can allow for the crafting of creative, mutually-acceptable, win-win solutions. These interests-based solutions can include apologies, the return of property, or an agreement for an extended or expanded business relationship between the parties. The mediation process minimizes the atmosphere of conflict and creates a better chance that the relationships between the parties will be preserved. Mediation is also very cost- and time-efficient. When parties cooperate, mediation can be organized on relatively short notice and is usually conducted in as little as half a day and rarely more than three days. The parties typically split the cost of the mediator’s fees. Even accounting for this and the cost for their own lawyers, successful mediation is substantially less expensive than even the preliminary stages of litigation. The involvement of lawyers in mediation is not a requirement, but, in the case of most serious legal disputes, it is highly advisable.
Mediations are conducted in private, and, if the mediation fails to bring about a settlement, nothing said to the other side or to the mediator can be used in subsequent proceedings. For this reason, neither side can ever call the mediator as a witness, should the matter proceed to arbitration or trial.
A skilled mediator thoroughly understands the negotiating process. Parties sometimes select mediators who are also knowledgeable about the business or field in which the dispute has arisen. While this can be helpful, it is rarely as important as the individual's mastery of mediation skills. A good mediator can assist the parties in evaluating the strengths and weaknesses of their own and their opponent’s case, understand their opponent's perspective, develop creative solutions, and deliver difficult messages to the other side more effectively than they can sometimes be conveyed directly. When a party exhibits overconfidence in its position, the mediator can often administer a much-needed reality check. Skilled mediators use their understanding of human nature, together with a variety of techniques, including humour and highly-nuanced and selective communications, to gradually bring disputing parties around to a consensus.
The mediation process is flexible and usually quite informal. It can be designed around the needs of the parties, their individual circumstances, and the nature of the dispute. Mediation can allow for the crafting of creative, mutually-acceptable, win-win solutions. These interests-based solutions can include apologies, the return of property, or an agreement for an extended or expanded business relationship between the parties. The mediation process minimizes the atmosphere of conflict and creates a better chance that the relationships between the parties will be preserved. Mediation is also very cost- and time-efficient. When parties cooperate, mediation can be organized on relatively short notice and is usually conducted in as little as half a day and rarely more than three days. The parties typically split the cost of the mediator’s fees. Even accounting for this and the cost for their own lawyers, successful mediation is substantially less expensive than even the preliminary stages of litigation. The involvement of lawyers in mediation is not a requirement, but, in the case of most serious legal disputes, it is highly advisable.
Mediations are conducted in private, and, if the mediation fails to bring about a settlement, nothing said to the other side or to the mediator can be used in subsequent proceedings. For this reason, neither side can ever call the mediator as a witness, should the matter proceed to arbitration or trial.