What is mediation?
Mediation is a form of Alternative Dispute Resolution. In mediation, the parties are assisted by a mediator to examine the dispute between them and to explore settlement options, with a view to coming to a negotiated settlement.
The process is voluntary, confidential and without prejudice. The mediator does not give any opinion or judgment on the case, but works with the parties to assist them in coming to an agreement. If an agreement is reached, the agreed terms are recorded in a binding settlement agreement.
Why mediate?
The main factors that make mediation an attractive option are as follows:
| Cost: | cost of litigation is often prohibitive for all but the highest value disputes. Mediation is significantly cheaper by comparison, and, particularly if mediation takes place at an early stage in a dispute, avoids the parties having to incur the full costs of a trial; |
| Time: | a court case will commonly take months to get to a final hearing. Mediation can take place at any stage of a dispute and, if successful, can result in a binding agreement being reached on the day of the mediation; |
| Flexibility: | a Court can only consider and give judgment on the specific issues which form part of a claim, which are not always the only or even the main issues between the parties. There are no such restrictions on what parties can discuss and agree at mediation, giving them freedom to think creatively and commercially in designing a mutually acceptable outcome; |
| Confidentiality: | the mediation process itself is confidential and without prejudice and confidentiality provisions can be incorporated into a settlement agreement, so potentially harmful publicity arising from the dispute can be contained; |
| Positivity: | Although inevitably disputes can cause emotions to run high, mediation encourages the participants to focus on solutions rather than to dwell on the past or attribute blame; |
| Costs protection: | the Courts increasingly encourage parties to mediate as an alternative to litigation. Refusal to mediate can have adverse costs consequences at trial – even if you ultimately win your case. |
Mediation at its best represents an effective means of resolving disputes in a quick and cost effective manner. Although there may be cases where mediation is not appropriate, it should always be at least considered as an option as a form of dispute resolution.
If you would like more information on how we can assist you with mediation, either to represent you or act as mediator in a dispute, please see Mediation for more details.