Mediation is a structured negotiation process in which an independent person (the mediator) assists the parties to negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties.
Is my dispute eligible for mediation?
All cases are eligible to be referred to mediation. There are factors that may mean your dispute is particularly suited to mediation, including:
- A readiness to participate in mediation
- A desire or need for parties to maintain their relationship
- The possibility that a judge’s decision will not end the dispute
- The existence of non-monetary factors
- The potential for a negotiated outcome that better suits the needs and interests of the parties than a judge’s decision.
Why choose mediation?
Mediation offers certain benefits over a trial by a judge, such as:
- Time – mediation generally resolves a dispute more quickly than a trial
- Cost – resolving a dispute through mediation means the costs of preparing and running a trial can be avoided
- Flexibility – a mediation process can be customised to your needs and it offers parties more control over the outcome
- Stress – mediation is less formal and less intimidating than appearing in court.
- Confidentiality – mediation is private. The judge is not informed of the contents of the mediation
- Satisfaction – parties are more likely to be satisfied and to comply with the result of mediation because they decide and agree themselves on the outcome
- Finality – settlement agreements can generally only be modified with the agreement of all parties.
What is involved in mediation?
First, the mediator will decide the best process for mediating your dispute, with consideration of suggestions from all parties where possible.
The mediation will then commence with an explanation of the process, followed by a discussion about the background of the issues in dispute.
The mediation itself is flexible and can be tailored to different circumstances. Mediators may assist negotiations by asking questions, facilitating discussion and offering alternative perspectives. It is common for the mediator to meet with the parties jointly and separately. If necessary, further mediation sessions can be scheduled.
The case may be settled in full, in part or parties may not be able to reach agreement. The mediator will notify the judge of the outcome but not the content of the mediation.
If agreement is reached about all or part of the dispute, the details of that agreement will be recorded and signed by all parties before the end of mediation. The mediator will notify the judge of a fully settled dispute and the case will be closed. If the matter is not fully settled, the file will return to the judge and preparations for trial may begin.
Disclaimer: The material contained in this publication is of a general nature only and it is not, nor is intended to be, legal advice.
If you have any questions about the mediation process and whether your dispute should go through mediation rather than through the courts, please contact our friendly team.