Mediation - An Alternative to Litigation in Solving Disputes
The use of an impartial person to help make informed decisions and develop mutually acceptable agreements.
There is a better way to settle differences than a costly courtroom battle. You can control the decisions that affect your family, your finances, your business, and your life through mediation, a voluntary settlement process. A mediator is an impartial person who helps people in conflict make practical, informed decisions to resolve the issues before them.
What is Mediation?
Mediation is a process of dispute resolution in which a neutral third person assists the parties involved in a dispute to negotiate their own settlement.
Mediation is a process whereby two or more parties agree to refer their dispute to a mediator. The mediator will assist the parties in reaching a mutually agreeable settlement. If an agreement amongst the parties is not reached, they are then open to pursue whatever other action they desire, (i.e. arbitration or legal proceedings).
How does Mediation work?
The mediator promotes communication between disputing parties, helping them to clarify the issues in their dispute, to identify underlying concerns and to develop an understanding of their respective interests that must be met. The mediator assists the disputants to search for solutions to the dispute. Normally, the mediator does not act as a judge or arbitrator unless the mediator is also acting as an arbitrator.
The settlement reached is entirely the product of the disputing parties.
A draft agreement is prepared by your mediator for signature by both parties at the conclusion of mediation.
The Benefits of Mediation
While the primary goal of mediation is to resolve differences, mediation also:
- leaves control of the outcome in the hands of the disputing parties;
- is flexible, allowing disputants to explore a wide range of options open to them;
- is fast enabling disputants to save substantial time and money;
- is confidential, avoiding public disclosure of the conflict and confidential business and personal information;
- can preserve or improve business and personal relationships by improving communication and understanding through non-confrontational problem solving.
History of Mediation
Meditation became increasingly utilized within labour and management disputes. The nature of the relationship requiring ongoing communication and cooperation necessitated the development of an effective, efficient and practical solution to dispute resolution.
The use of mediation as a form of dispute resolution expanded to such areas as family disputes, commercial disputes, environmental disputes and community disputes. Business people are now frequently turning to mediation as a forum within which to resolve disputes more quickly, thereby preserving a business relationship and saving money both in terms of manpower and cost.
In some circumstances it may be advisable to retain two mediators to assists with the case.
Is a Lawyer necessary?
Lawyers may or may not be present in mediation. This decision is left entirely to the disputing parties. It is always recommended that each of the parties speak to a lawyer prior to mediation to ensure that they are familiar with their legal rights.
When does Mediation work best?
Mediation works best,
- where a conflict threatens to break a successful business relationship;
- where the legal costs of litigating the dispute are disproportionate to the amount of money in dispute;
- where delay is unacceptable such as when the conflict is interfering with the essential day to day decisions;
- where a tailored and complex solution is needed;
- where the issues in dispute are very sensitive, confidential or personal and public attention is undesirable;
- where the dispute involves emotional issues, such as family break-up.
Arbitration is where the parties appoint one or more persons to be a private judge of their dispute. The decision can be binding upon the parties if they wish. Often a combination of mediation and arbitration works very well. Our lawyers also act as arbitrators and will conduct a mediation-arbitration if requested.