What is Mediation?
Mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. Another common wording for Mediation is Alternative Dispute Resolution (ADR) also know as Assisted or Appropriate Dispute Resolution.
Some symptoms of unmanaged conflict
Effectively managing disputes is a sure way to reduce your legal and administrative costs, and increase management’s productivity.
- Excessive employee turnover
- Damaged management credibility
- Increased supervision expenses
- Reduced productivity
- Decreased customer satisfaction
- Evidence of distrust
- Damaged reputation
Why is Mediation being used more often?
It’s efficient, cost effective and leads to flexible solutions that:
- Preserve relationships
- Improve understanding
- Ensure commitment and ownership
- Evolve into logical and durable agreements.
- Can be organised quickly and parties come together at a time convenient to the parties (no the court).
- Parties maintain control of the dispute.
- Settlement can be in non-monetary terms ad options can be sought that meet the needs and interests of parties, rather than being confined to judicial remedies.
- Usually less expensive than litigation.
- It can be started before or after litigation has commenced and doesn’t alter positions in court lists.
- Settlement can be final and binding as far as the law allows.
- Parties may be able to achieve a resolution based on their commercial interests rather than a court-imposed decision.
- Can be conducted at a variety of places suitable for the parties.
- Proceedings are generally confidential.
- Parties can select the Mediator.
- Allows all sides in a dispute to have the chance to tell their view of the situation. In this way they often feel they’ve had their “day in court”.
- Can make room for an expression of feelings as well as substantive issues.
- It draws on consensus and mutuality rather than adversarial.
- Relationships can be preserved and often enhanced.
- Focuses on “problem-solving” and resolution rather than blame or who’s right and wrong.
- Party Statements
- Mediator Summaries
- Flexible Agenda
- Explore & Discuss
- Table & Evaluate Options
- Finalize Agreement
When Mediation may not be suitable
- Violence is threatened or perceived.
- Public scrutiny of the issues and outcome is required.
- A precedent, legal or otherwise, is required.
- An allegation of fraud or criminality is involved.
- Politics or another agenda is driving the matter beyond the control of the parties.
- Key Stakeholder won’t participate or negotiate.
- Gross inequality of bargaining power between the parties.