mediation Aug 05, 2019
Mediation is an old word. The etymology of which can be traced back to the 1540s, from the Latin, mediare, meaning to "be in the middle".
Let’s get back to the present! Mediation, as it stands today is just one option in the spectrum of alternative dispute resolution that includes negotiation, arbitration and litigation.
Mediation is a voluntary process. Everyone has to agree to mediate first of all. If a party decides to end the mediation, they can do so at any time.
Mediation is non-binding. This means that a decision cannot be imposed on the parties in the mediation. For any settlement or agreement to be made, the parties must voluntarily agree to accept it and is legally binding only once put in writing and signed by the parties.
Unlike a judge or an arbitrator a mediator is NOT a decision maker. They don’t judge or advise. A mediator is neutral and impartial and they don’t take sides in the dispute. They may play the role of ‘devil’s advocate’ when questioning the parties in the dispute, but this is just to investigate opportunities for settlement. The mediator will ensure that both parties get a chance to state their case, hear the other side, work through the issues that are important to them and make an agreement. A key part of mediation is that parties in mediation are in control of the solution. With the help of the mediator, the parties with the dispute decide whether they can resolve things and what the solution should be.
Mediation is a confidential process where the terms of discussion are not disclosed to any party outside the mediation hearing. If parties are unable to reach agreement, they can still follow formal procedures such as grievances and complaints or go to court if appropriate. Mediation is a process that is done ‘without prejudice’. That means that what is said during the mediation cannot be used outside of the mediation, for example, in a court. However, there are some exceptions to this.
Mediation is a flexible process that can be used to settle disputes in a whole range of situations. Due to its nature it’s perfectly possible to conduct mediation as a means of dispute resolution alongside litigation. In some cases, litigation can take a long time and it’s not uncommon for parties to settle prior to actually stepping into the courtroom. This could be as a result of mediation or negotiations happening alongside.
To summarise then, mediation is a very flexible process where a neutral third party can assist disputing parties in resolving their conflict through communication and negotiation techniques. Typically, mediation can be very quick and very cost effective.