Mediation is a form of Alternative Dispute Resolution (ADR). It is a voluntary process which involves the disputing parties and their legal advisers (if any) meeting with a neutral third party – the Mediator – to try to achieve a settlement of their dispute by agreement. In essence it is a formalised negotiation which typically takes place on a certain day at a certain place. The process is confidential and without prejudice and therefore provides a safe environment for the participants to explore settlement as an alternative to proceeding with the dispute through the Courts or arbitration.
The Mediator’s role is to establish a positive environment where a principled negotiation can take place based upon reason and objective criteria. (S)he will use reality testing to explore with the participants the assumptions of fact, law, risk and cost that underpin their respective positions. (S)he will invite the participants to look beyond the immediate dispute and consider their wider interests and how the continuation of the dispute fits in with those interests.
It is important to understand that the Mediator is not a judge or arbitrator and it is no part of his/her role to “decide” the case. There are however varying shades of Mediator styles, ranging from the purely facilitative model (where the Mediator will never express a view on any issue in contention), through to the evaluative (where by prior agreement a specialist lawyer mediator can express views on the merits of participants’ positions). It is important for the participants and their lawyers to know the style of the particular Mediator they propose to appoint.
The Mediator will meet with the participants in private sessions and in joint meetings, or may put particular individuals (for example the lawyers, or the main decision makers) together if it is considered that it may assist in finding a resolution. When a resolution is reached the participants’ lawyers will then work together to crystallise this in a written agreement which will be signed at the end of the mediation. No settlement is binding until this has been achieved.
One of the great advantages of mediation is that the resolutions that emerge can go well beyond what a judge could order at the end of a trial, where any judgment is limited by legal constraints and precedents. This means that there is room for creative solutions through mediation, for example solutions that preserve a commercial relationship or facilitate a process of reconciliation between the participants.
Many disputes (for example between family members or former business partners or employment cases) can be very personal and the participants will frequently have made a huge emotional investment in them. The mediation process can be highly cathartic in such cases, allowing the participants to feel that they have “been heard”. On the other hand, many commercial disputes do not have this personal element and the emphasis will be on achieving a lasting commercial solution so that the participants can move on and focus on what they should be doing – running their businesses.
The Courts do not (yet) have the power to order disputants to mediate their disputes. They do however have the ability to penalise parties who unreasonably refuse a request by one of the parties to mediate. Therefore mediation is not a statutory process (in contrast with litigation through the Courts or arbitration); it is a private process regulated by a contract between the participants and the Mediator. This contract is called the Mediation Agreement (see my own Mediation Agreement here), and it defines the procedure and sets out what the participants and the Mediator can and cannot do, both before, during and after the mediation.
To get the most out of the Mediation process and maximise the chances of a successful outcome, participants and their lawyers need to prepare carefully for the Mediation.