Mediation and Alternative Dispute Resolution (ADR) have become buzz words used by litigators over the past few years. Sadly however many people have simply paid lip service to these concepts and not properly engaged with them to make the best use of the opportunities which they provide for settling disputes.
Mediation itself comes in two forms. Evaluative Mediation which is where the mediator looks to advise the parties as to the merits and strengths of their case. This is similar to arbitration. More prevalent is Facilitative Mediation. This will be the focus of this blog post.
This type of mediation is a process whereby an independent party tries to assist the parties in reaching some form of agreement. The mediators role is to listen and adapt the process according to the requirements of the parties given it is their process.
Generally prior to the mediation the parties will have chosen the mediator and agreed a mediation agreement and then provided a mediation bundle. The mediators job is not then to rule on the merits or otherwise of the parties position but obviously it is useful for them to have an overview of the respective positions.
Mediation is a completely confidential process. This means that whatever is said should remain at the mediation and it is exceedingly rare for mediators to give evidence at a trial. Also it is not the mediators job to advise upon the settlement or to write the same up. All of this is the job of the parties jointly and they must satisfy themselves as to what they are doing. Usually the mediator will start the process by explaining all of this and then inviting the parties to each have a say.
This process of itself can often be very useful as it allows the parties to explain their position and often to vent emotions they feel. Whilst this can be a difficult process doing this in a controlled environment can of itself help to move the matter forward. Once initial statements have been made the mediator will then consider whether the parties should break into individual sessions. That being said there is no right or wrong as it must dependant upon the wishes of the parties.
The mediator may then move backwards and forwards between the parties. Sometimes inviting them back to joint sessions to discuss matters and also in closed sessions sometimes helping the parties test their cases. The mediator is often best doing their job when they appear to be like a ghost and are saying little!
Hopefully some common ground can be found and the parties can agree something. This will generally be drafted by the parties and they will sign this. Remember this agreement can cover anything not just what a court could or might order. This of itself is one of the great benefits for commercial disputes. A confidential settlement can be reached and relationships maintained.
Mediation does not prevent disputes but it does offer parties a chance to resolve them speedily and effectively. For the process to really work all the participants including the lawyers need to understand the process and the benefits.
If you want advice on mediation or require a mediator we would be happy to help. We have trained mediators who can provide a fixed price service to help resolve disputes.