What is Mediation? How Can it help me and my business?
In a mediation procedure the Mediator is a neutral independent person who acts as a facilitator who helps the parties to reach a mutually satisfactory settlement of their dispute. Any settlement terms reached can be signed and recorded in an enforceable contract. Mediation is an efficient and cost-effective way of achieving a fair outcome while preserving, and at times even enhancing, the relationship, business and personal, of the parties.
The principal characteristics of mediation are:
Mediation is a confidential process, driven by the parties , invoked in good faith, as a means of resolving issues giving rise to a claim, dispute or conflict facilitated by a Mediator who will assist the parties to reach an accomodation in an non - adversarial manner.
A party to a Mediation cannot be forced to accept an outcome. Unlike an Adjudicator, Arbitrator or a Judge or other Tribunal, the mediator is not a decision-maker. The Mediator's role is, rather, to assist the parties in reaching a settlement of their differences.
When the parties have agreed to submit a dispute to Mediation, they are free to abandon the process, at any time after the first meeting, if they find that its continuation does not meet their interests provided the party gives the Mediator the benefit of an agreed 'cooling off' period with them before terminating the process.
Anecdotal evidence, from practitioners and service providers, universally, in this area, would suggest that parties usually participate positively in Mediations once they begin.
If they decide to proceed with the Mediation, the parties have a hand in how the process should be conducted with the mediator.
Mediation is a confidential procedure
In a mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote a resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot, under the agreed format in the Mediation Agreement and the Mediation Rules, be provided to anyone - including any Court Proceedings, Litigation or Arbitration - outside the context of the Mediation, unless it is information that would ordinarily be disclosed in those other processes or is required to be so disclosed by law.
In the ordinary course, both the outcome of a Mediation and its existence are confidential. The existence, however, of Mediations which are part of a Court - annexed Mediation Scheme or are prescribed by a Court or legislation will be known to have taken place.
Mediation's privacy and confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.
Mediation is an interest-based procedure.
In Litigation, Arbitration and Adjudication, the outcome of a case is determined by the facts of the dispute and the applicable law. In a Mediation, the parties can also be guided by their business interests and objectives. As such, the parties are free to choose an outcome that is influenced as much by the future of their business relationship as their past conduct or conflict.
When the parties have regard to their interests and engage in dialogue, Mediation often results in a settlement that creates more value than would have been created if the underlying dispute had not occurred.
Because Mediation is non-adversarial in style and confidential, it involves minimal risk for the parties and generates significant benefits. Many who have used Mediation say that, even when a settlement is not achieved Mediation contributes benefits in that it causes the parties not only to define the facts and issues of the dispute but to put a mirror up to their own assertions, thus assisting in preparing the ground for subsequent Arbitration or Court Proceedings in a more realistic light.
