The Role of Mediation in Alternative Dispute Resolution

If you have ever wondered “what is mediation and how can it benefit me?”, this article explains all you should know.

First, let me describe mediation, it is an alternative way of resolving disputes between parties. It involves creating a forum between the disputing parties where sincere discussions about the dispute can take place and common solutions can be found. 

The discussion in mediation is usually overseen and guided by a neutral third party known as a mediator. It is a voluntary process – this means that you can always withdraw from discussions if you are not comfortable. 

Mediators are usually trained in the art of negotiation and have a good understanding of human dynamics. They have great listening skills, can articulate issues and make effective restatements. 

The mediator does not decide for the parties. What they do instead is guide the process and let the parties come to an agreement. The settlement reached in a mediation process is not binding and if one or both of the parties is not satisfied with the settlement, they can go for another dispute resolution method. In most cases, this is where the parties go for arbitration.

In law, mediation is a method disputing parties use to attempt to resolve their differences before going to court or without going back to court after a preliminary hearing. It is less expensive, less intensive and less time-consuming than the court process. The mediator is usually a professional who has been specially trained to help disputing parties find speedy, mutually beneficial solutions to disputes.

There are many reasons why mediation is an effective means of resolving disputes. But perhaps the most important of all is that mediation gives parties a forum where they can truly listen to each other, understand the other’s position, and genuinely work towards a common solution. 

Often, dispute resolution is about picking sides and doing everything possible to ensure one side wins. But in mediation, the goal is not necessarily to win but to resolve the dispute in the most effective way possible. As a result of this, resolutions secured through mediation are often more comprehensive, fairer overall, and more long-lasting.

There are two major techniques used in mediation. They are interest-based mediation and evaluative mediation. There is a third style, which is relatively new, known as transformative mediation.

Interest-based mediation is also called facilitative mediation, understanding mediation or assisted negotiation. Here, the mediator guides the process by asking questions, offering validations and getting the disputing parties to find resolutions that would work for them. The mediator does not make any recommendations or offer advice. What he or she does is to take charge of the process while leaving the outcome to the disputing parties.

Both parties may choose to have their lawyers present. The mediator encourages the parties to listen to each other and ensures that they have a fair opportunity to air their grievances. If need be, the mediator can meet separately with each side – a process known as “caucusing”.

Evaluative mediation is a bit like a settlement conference overseen by a judge. The mediator in this type of technique is known as an evaluative mediator. He or she helps parties to a mediation defuse the dispute by identifying the weaknesses of their case. The evaluative mediator also predicts what a judge or jury is likely to do.

Evaluative mediation is more concerned with a fair resolution of disputes based on legal concepts. It places the legal rights of the disputing parties above their needs and interests. Since an evaluative mediator needs to be an expert in the area of law relevant to the dispute, most evaluative mediators are lawyers.

The lawyers for both parties work with the court to choose the mediator, and they are usually very active participants in the process. Normally, the disputing parties are not placed in the same setting. They may be in the same building but different rooms. The mediator goes back and forth between them, presenting needs, concerns and offers

In addition to the question “what is mediation?”, many parties also want to know what is a legal mediation process. While the process is largely case-dependent, there are general steps that will be involved.

The first step is agreeing to go for mediation after which both parties agree on a choice of a professional mediator. Having chosen a mediator, the next step is to sit with the mediator and work towards understanding the problem(s). Under the watchful eye of the professional mediator, both parties generate options that might lead to a resolution and then agree on one that satisfies both parties. When parties reach an agreement, the next step is implementing the agreement(s).

Mediation has many advantages for parties in a variety of settings. These advantages include:

Mediation helps the disputing parties preserve their relationship. Taking a dispute through litigation can result in bitter feelings from both sides. Due to the consensual nature of the mediation process, parties can avoid situations that may make it impossible to continue a productive relationship after settlement.

The mediation process is not governed by strict rules and is as a result, highly flexible. This flexibility makes it advantageous to use mediation especially in complex cases that involve numerous issues. The parties can reach settlements that are more broad-based and exhaustive than legal remedies in court proceedings.

Mediation is subject to the Access to Information and Privacy Act. This makes it a private process and an ideal one for disputes where confidentiality is necessary.

Mediation is a very important option for dispute resolution because of its ability to help parties resolve their real dispute. The warm, collaborative atmosphere it facilitates encourages parties to put away their swords for the time being and really interrogate the dispute. 

With the help of a professional mediator, who is usually trained in identifying the core of the dispute between the parties and helping them see where their true differences lie, parties can solve their dispute better and more completely than a court-supervised process. 

Another reason why mediation is an important option for dispute resolution is its versatility. I have mentioned above that mediation has become a dispute resolution method of choice in many industries and situations. But these are expanding by the day, largely due to the effective nature of mediation. 

The goal of mediation is to help you reach a complete resolution of your dispute. Central to this is helping you identify what the best possible outcomes are for you in relation to the dispute, and how this matches up with your goals for the process. Common outcomes in mediation are: 

• Agreement between the parties. This is the best outcome for both parties. Although, it must be noted that this will often involve a bit of compromise on both sides. 
• Failure to reach an agreement. Even in this case, mediation will still have proved very useful because it has brought both parties to the table, and helped you communicate. In many situations, parties find that they reach an agreement shortly after mediation due to their new understanding. 
• Stopping the session before the end. This occurs in rare circumstances where either party or even the mediator, believes the mediation should end before conclusion. This may be due to several reasons including a severe power imbalance, threats to one party by the other, or other reasons that make it inappropriate to continue. 

It is important to note that it is not in all situations that the available outcomes will completely align with your goals for the process. As mentioned earlier, mediation helps you identify the real issues in contention and work towards a satisfactory solution. You may find your goals inappropriate, impossible, or off the mark when you discover the real issue. 

Power imbalances in mediation occur when either party wields a much stronger advantage over the other party. In these cases, continuing with the mediation session may result in bullying the hapless party or forcing them into an unfavourable settlement. Mere presence of a power imbalance will not render the mediation unfair though. An experienced mediator will be able to identify where a power imbalance exists and work to provide a level negotiating table for the parties.

It is advantageous to know what to expect during mediation and the critical items that make up the mediation process. When parties have agreed to go to mediation and select a mediator, they should draft out a mediation agreement. The critical issues the agreement should address include:

• The logistics of the mediation 
• The mandate of the mediator
• The arrangement for payment and cost-sharing
• The confidentiality of the mediation
• The process to follow for financial disclosure – whether it would be in advance or required by the mediator
• Options for other dispute resolution methods if mediation does not work

Now that you fully understand the meaning of mediation, how it works, and its benefits, you must be wondering how you can begin. Mediation usually starts with identifying and retaining the services of a mediator. You can do this by looking for an online mediation service or visiting a mediation center near you. 

When you meet with a mediator, they will explain all you should know about the process and answer any questions about the mediation you have. This will include questions about the best mediation for you, who has to pay for mediation, how long the process will take, and the mediation times that will be scheduled. 

Generally, both parties to the mediation are expected to contribute financially towards the process. They will equally bear the cost of retaining the mediator and any other costs that are incidental to the mediation. As for how long the process will take, it may not be possible to tell this from the start. This often depends on each specific case and its unique circumstances. However, the process typically takes anywhere from a few days to a few weeks, depending on how fast the parties are willing to resolve their dispute. 

Once you have retained a mediator, the next step will be to draft a mediation proposal letter. This letter proposes to the other party that the dispute be submitted to mediation. If the other party agrees, a mediation agreement will be drawn up. The agreement includes the terms of reference, and an undertaking to respect the outcome of the process. 

The mediation process offers confidentiality. This means that everything you say at the session will be kept in strict confidence, and nothing you say may be presented as evidence in court. This allows both parties to fully engage in the session without worrying that any financial disclosures they make will be used against them. 

But note that there are exceptions to confidentiality in mediation. 

• Usually, courts allow evidence of what was said and done at the mediation in order to prove that an agreement was reached, or to prove the scope of the agreement. 
• Another exception relates to matters that relate to child protection concerns. The welfare of children is paramount, and if necessary, inquiry will be made into what was said and done at the mediation session in order to protect children. 
• Threats of harm to oneself or others during the mediation will also be an exception. Such threats must be taken seriously and reported to the police. 

Overall, mediation provides a mutually-acceptable avenue to completely resolve disputes and find long-lasting solutions. If you would like to further explore the benefits of the process, or get started with a mediator, contact Divorce the Smartway for help today.