Mediation has been defined as a flexible process, conducted confidentiality, in which a neutral person activity assists the parties in working towards a negotiated agreement of a dispute or difference. The mediator seeks to assist both sides in coming to an agreed settlement. The parties are in ultimate control of the decision to settle and of the terms of resolution.
The parties conduct settlement negotiations, through a mediator whom they choose by agreement and who is suitable and acceptable to the parties. The mediator sets a structured process within a defined timescale and seeks to create an impetus for a settlement agreement. The mediator does not determine the dispute or impose a solution.
Parties to litigation frequently have strong feelings of anger and pride which may lead them to adopt intransigent positions. A mediator should be detached from the dispute. The mediator should help them to communicate constructively. He should be skilled in negotiating in a principled and structured fashion.
The mediator may seek to use tactics to avoid deadlock in negotiations. He may seek to create a balance between the party’s different styles of negotiation. He may make proposals for settlement. Proposals made by the mediator may be more acceptable than those made by the other party to the dispute.
Mediation may enable parties to assess the strength of each other’s case. This should be not the primary motive for mediation. However, it should assist in taking the decision as to whether the parties should settle.
Types of Case
Mediation is potentially suitable for a wide range of disputes. It is less suitable for certain type of cases, such as where points of law or the interpretation of a document are involved. It may not be appropriate for many cases such, for example, those involving public rights and duties, cases requiring injunctive relief and cases involving those who lack the legal capacity to settle.
Where a party has a strong case, mediation may not be appropriate. Equally, it may be inappropriate where one party has a very weak case. Mediation is not appropriate where it is initiated for tactical reasons. It is not appropriate in cases of fraud, intentional wrongdoing, abuse of power, physical or mental abuse and domestic violence.
Advantages and Disadvantages
Mediation has the advantage of flexibility. It is potentially speedier and should generally be more cost-effective than litigation. Mediation can generally be arranged more quickly. It is confidential and private. In some cases, a party may wish to avoid an adverse publicity in court. Mediation has the advantage that it seeks a solution by agreement, rather than one imposed by the court. It allows a more flexible solution than a court order. This may be more consistent with continuing commercial relationships.
Mediation has certain disadvantages. It may delay the process as a whole and may increase costs if there is no ultimate resolution. Parties may fear revealing their evidence in advance, It is questionable whether this is a legitimate concern, if a party’s case is in fact, weak. Although mediation is confidential, there may be a fear that matters disclosed may be used against the party concerned.
Timing and Context
Mediation may take place at any time. It may take place before litigation commences. Litigation in some cases may be premature if the issues between the parties are not defined. The mediation process may assist in defining the dispute. Mediation may be appropriate at a later stage when the issues have been defined by discovery and document exchange. At that stage, the parties may be better able to assess the relative merits of each’s claim and defence respectively.
Mediation may commence in a number of ways. The parties may first negotiate directly between themselves. Mediation might be considered if negotiations fail if the case is a suitable type for mediation. Parties may enter (or have entered) a contract before the dispute arose, which requires them to attempt to resolve their disputes by mediation.
Although mediation is voluntary, the courts have been granted increased powers to facilitate and encourage mediation. There are long-standing provisions in the area of family law which seek to direct the parties towards mediation. EU legislation and other factors have led to the incorporation of general provision for mediation in the court rules. Courts may use their powers in order to pressurise parties to engage in mediation. The court may have the power to apply costs sanctions if parties refuse unreasonably to mediate.
The parties to mediation must pay the mediator’s costs, the costs of the venue and the associated costs. The cost factor may give an increased impetus for settlement. Mediations generally last a day or less. If the case is more straightforward, it may be shorter. However, if it is more complex, it may run for several days and up to a week or more.
Each party is likely to incur solicitor’s or counsel’s fees. In addition, the mediator’s fees will be payable by the parties jointly. It may be on an hourly or daily basis. There may be a set fee for every set number of hours. Each party to mediation will usually bare its own costs.
A mediation agreement may provide that fees and expenses are borne equally. The parties may agree to pay the costs in accordance with another arrangement. They may agree that all cost should be paid by the successful party, whether by settlement, arbitration or by court order.
Certain individuals and entities provide mediation services. There are statutory and private ADR providers. The State is obliged to provide for mediation in certain consumer disputes, by EU law. Private providers may provide the mediator and also administer the process by arranging facilities and a venue. They may provide a template form of mediation agreement and advise the parties on the process.
Mediators commonly have a background in law or are practising lawyers. Some well-known barristers and solicitors are prominent mediators. In some fields of dispute, expertise gained in that field or in a related field will be of practical assistance. In those types of case, a mediator who is familiar with the relevant field may be appointed. There may be a shortlist of specialist mediators who practise in the area, relevant to the dispute.
There is no formal system of accreditation or regulation of mediators. A number of ADR organisations provide their own systems of training and accreditation. In the UK, The Law Society and the Bar Council have each adopted standards for the purpose of accrediting their members as mediators. Private accreditation bodies may require training and continuous professional development. Courses include training in ethics, meditation theory, practice negotiation and role-play exercises.
Mediation Styles I
The parties may interview prospective mediators in advance of electing to choose one. Consideration should be given to the prospective mediator ’s expertise, experience and background as well as their mediation style. Mediation may be facilitative or evaluative and directive. Facilitative mediation is more common. However, even in facilitative mediation, the parties may allow the mediator to take a wider role, in which case it may move more towards an evaluative mediation.
The facilitative mediator is neutral and impartial and seeks to help parties resolve problems and issues by facilitating negotiation. He should help facilitate the formulation of offers. He may give guidance on the timing of concessions. He should not give his own opinions on the strength and merits of the cases.
The facilitative mediator should seek to explore the issues with the parties and identify the strength and weakness of their case. He should assist in identifying the real commercial and legal objectives of the litigation. He should go beyond the purely legal position to bring focus on the full context, including the practical, costs and commercial implications. The avoidance of damage to business relationships may be an important consideration.
Mediation Styles II
Evaluative mediation is similar in some respects in conciliation. The evaluative mediator, who is more likely to be a lawyer, considers the strength and weaknesses of the parties’ cases. He will exert more control than the facilitative mediator and may challenge the parties to reassess their own case by giving his opinion on the outcome. The evaluative mediator may take a more legalistic approach, with greater emphasis on matters of law and fact.
An evaluative and facilitative approach is not, of course, mutually exclusive. There is a spectrum of possibilities and some may some may adopt a more facilitative style that other. The evaluative mediator will seek to facilitate a settlement. He may meet the parties privately, while also evaluate in a meeting of both parties jointly.
The parties may request the mediator to move from a facilitative to an evaluative role. Mediators will not generally take an evaluative role unless requested to do so as it may avoid lead to accusations of bias. Some ADR providers do not allow their mediators to give an opinion on the merits of the dispute or likely outcome, lest they it should be perceived, that they are forcing a solution.
So called transformative mediation seeks to improve relationships and communication between the parties. This may indeed be its primary motive, and may focus less on the dispute. In this case, the mediator’s role is more reflective and the parties have greater control of the discussion. A transformative style may be employed in a facilitative or evaluative mediation style.
Initiation of Mediation Process
The mediator will generally contact parties or the representatives, whether in person, by telephone or in a conference, in order to advise them as to how they should prepare. He will explain his functions and the role the parties should play. He should advise on costs. Complex or multiparty disputes may require a team of mediators.
The mediator should establish the limits of his authority. He should organise and manage the mediation. There is likely to be an opening joint meeting. The mediator will fix time limits and structure for opening statements. Opening statement should be given uninterrupted which equal time being given to each. This parties ay prepare case summaries, statements of position, and other documentss for use in the course of the mediation.
Mediation is usually held at a neutral venue, commonly a hotel. There will generally be three rooms, one for use by each party and a room for joint meetings. The mediator may require a further room for joint meetings of experts and lawyers during negotiations. The mediator will determine what meetings should take place. There may be a sequence of meetings, particularly in family disputes.
The mediator will assist the parties in identifying the legal and factual issues and develop their understanding of their needs and objectives. He may encourage parties to vent their feelings and emotions particularly, in private meetings. He will encourage them to analyse the strength and weaknesses in their case and in the other side’s case.
The mediator may encourage the parties to consider the best alternative to a negotiated agreement and the worst alternative to the negotiated agreement. He may assist them in carrying out risk assessments, including the risks on costs that are legally or practically irrecoverable.
The mediator will seek to act as a go-between for parties and may carry offers, concessions and counter offers. He may in many cases facilitate as an intermediary, where and for so long as this works better than face to face negotiations.
If a settlement is reached, the mediator will assist in brokering its terms. If a settlement is not reached, the mediator may be available at a future date to assist in brokering an agreement, on the basis of having gained the respect and confidence of the parties.
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