What is mediation?
Mediation is a voluntary process of resolving disputes by the conflicting parties with the help of an independent, impartial party known as a mediator with the joint instructions of the conflicting parties. Mediation is one of the most commonly recognised ways of alternative dispute resolution (ADR). Mediation is conducted by a third independent, neutral party instructed by the disputant parties. Mediators create a cooperative atmosphere to assist the disputants in finding out a workable, durable and amicable solution to the disputes themselves acceptable to all parties. Parties cannot be compelled to attend mediation unless there are court directions, or there is a contractual obligation of mediation. In some instances, the court will impose costs sanction on those who unreasonably refuse to consider mediation. However, in some cases, mediation will not be suitable, mainly if there is an urgency or any legal enforceability. It is essential that before embarking on the mediation, the parties need to ascertain whether mediation is the most suitable form of the ADR in their specific circumstances. In mediation, everyone is the best judge of their situation. Mediating parties think for themselves; they speak for themselves, and they decide for themselves, keeping in view their own circumstances and the knowledge they acquired during the mediation processes. In a nutshell, mediation is another name for a win-win situation for resolving a dispute.
Mediators are an independent, neutral and trained professional who has no personal interest except to mediate and help the conflicting parties through a structural negotiation to find out a solution of their disputes by themselves. Mediators have no personal stake in the conflict or its resolution their role is to help and assist all conflicting parties to work together for reaching a settlement which satisfies every one of the conflicting parties. Mediators cannot impose their own decision on all or any party and neither advocate for one party or give legal advice. Their role is to guide and lead the disputants to talk with each other productively and constructively to find out themselves solution of their dispute in a peaceful environment. Any settlement reached during the mediation is enforceable, if signed by all parties. Mediators only object is resolving an emotionally charged conflict and healing a broken relationship with the resolve and cooperation of the conflicting parties if they adopt a collaborative problem-solving approach.
Kinds of Mediation:
Mediation can be classified in various ways, and it mainly depends on the types of conflicts. The following classification focus over here is the interpersonal conflicts/disputes where the parties have some ongoing connection.
Control: The disputing parties make their own decision, and the processes are less stressful comparing to a Court’s proceedings. The parties can explore the misunderstanding, suspicions and other side’s point of view and interest. The parties have opportunities to express their concerns and reasoning.
Confidentiality: The whole process of mediation is private and confidential, and no one can rely on it without the expressed consent of the other party.
Speed: The mediation process is quicker compared to the court’s proceedings.
Lower Costs: Mediation is very cost-effective, and it’s a tiny fraction of the court costs.
Enforceability: The decision made by the parties can be enforced through the court in case of breach by any party.
Without Prejudice privilege: In mediation, negotiation for settlement are usually conducted “Without prejudice” which means that relying on the information revealed in mediation is very restrictive. The contents will remain confidential until the privilege has been lifted or the Settlement has been reached.