When parties find themselves in a dispute they are unable to resolve, mediation is a great option. Mediation is a low cost option with little risk of ending up with an unwanted outcome. It is a fast and confidential way to end a dispute.
What is mediation?
Mediation is where parties in a dispute or conflict seek assistance from a neutral third party, called a mediator. The mediator’s role is to manage the process and help the parties talk about the problem, but the outcome is totally up to the parties. The mediator does not make decisions for the parties, so there is little risk of ending up with something that is not desired.
The mediator will help the parties explain their positions to each other, with the aim to create understanding and empathy for each other. Often this can lead to more creative and better solutions than a court would be able to impose. Litigation is said to results in winners and losers, whereas mediation aims for a win-win solution. Mediation is also thought to result in better compliance, because the outcome is designed and agreed between the parties.
If the parties agree on a solution, the mediator will usually help the parties record it in writing (a settlement agreement). The resolution can be informal (for instance an agreement about future conduct), or it can be made binding and enforceable (for instance when a record of settlement is confirmed under the Employment Relations Act). The desired outcome is often influenced by the nature of the dispute.
Mediation can be helpful to resolve many kind of dispute ranging from a disagreement between family members, neighbours, business partners, contracting parties, educators and students, employers and employees, or even between employees at the same workplace.
How does mediation work?
Mediation is voluntary, which means the parties agree to participate, or not. Usually one party will contact a mediator to ask for assistance, and the mediator will then contact the other party to ask them if they are wiling to try mediation.
The mediator is appointed jointly by the parties (which means can chose who they want). Sometimes it can be helpful to appoint a mediator with a background in, or special knowledge of a particular industry or problem. For instance, if the parties are Maori, they can appoint a mediator who is familiar with tikanga Moari (Maori protocols and customs).
Parties can agree how they want the mediation to be conducted. They can customise the process to fit their needs and preferences including: the venue, the attendees, the duration, on how they want the dispute to be mediated. Mediation an take place in person, over the phone, or videoconference. It can take place over a single day, or over several sessions. The parties can also decide who they want to attend with them (for instance parties can attend with or without their lawyers). Parties can also agree to bring a support person with them.
Parties will usually have separate meetings with the mediator first, before they meet together. The mediator will explain the rules (for instance the conduct expected of parties at mediation, the process that will be followed and the attendees obligations around confidentiality and privacy).
The mediator will also make sure the parties have the ability to settle the dispute (i.e. they have authority to commit to an agreed outcome).
The parties usually take turns to explain their positions to each other without being interrupted. They will also have an opportunity to ask questions of each other. The mediator will help the parties brainstorm about possible solutions and consider the pros and cons of each option. The parties will also explore what they can do if an agreement is not reached, and what the cost of that might be.
What are the benefits of mediation over other processes?
Better outcomes:
- The solutions that are possible through mediation are more varied than what is possible through court proceedings. Solutions crafted by the parties themselves are often more effective because the parties, who are intimately familiar with the issue will have a better idea about what is practical, how it can be implemented, and what they are willing to commit to.
- Mediation is about win-win outcomes that are mutually acceptable to both parties, rather than to create a winner and a loser.
Quicker and more cost effective:
- Mediation is a less expensive than going to court and the process takes much less time. Parties could spend a tens of thousand of dollars (or more) when going through court, and also risk being ordered to pay towards the other parties cost.
- Court proceedings can take months or even years, whereas mediation allows the parties to move on with their lives much faster.
Private and confidential:
- The process is “without prejudice”, which means the parties cannot later use what was discussed in court proceedings. The parties can therefore talk more freely about the problem and possible solutions, which increases the possibility of a resolution being reached.
- The parties can also agree to keep the matter private, which is helpful in terms of protecting reputations.
Voluntary:
- Participation is voluntary, as it the agreement reached between parties. The parties retain control, so there is little risk of ending up with an outcome that is not desired.
- The parties can stop mediation at any point in time if they don’t feel it is helpful or if it becomes overwhelming.
Flexibility:
- The process is informal, making it far less stressful and intimidating to the participants.
- The process can be tailored to the specific needs of the parties (for instance cultural needs, mental health or disabilities, busy schedules, the parties being in different locations, and so on).
Future focussed:
- Mediation is about looking forward to a solution, rather than attributing blame for past actions. Mediation can help parties repair a relationship and restore trust in each other. This is particularly helpful if there is an ongoing relationship between the parties (like family members, work colleagues, or business partners).
If you would like to know more about mediation or if you want to appoint a mediator (or a representative to attend mediation with you), Empower Law can assist.
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