Often when there is a dispute people who are in conflict will go to a court for a solution. The court process can be long, stressful, and expensive with
no guarantee of successful outcome. Someone may win and someone may lose and sometimes neither side will get
what they want.
In this guide you’ll learn what mediation is and its many benefits for individuals, businesses, and organizations.
What is the meaning of Mediation?
The role of a Mediator?
Types of mediation
What to expect from a mediation meeting
Getting ready for mediation
The importance of confidentiality
Why mediation is the solution
What is mediation?
Mediation is an alternative way of resolving a dispute or a conflict to that of a formal complaints or grievance procedure. Mediation allows two or more people (the parties) involved to find their own way forward to communicate effectively about the issues in the dispute and their respective goals. In mediation, a neutral person, the Mediator who meets with the people involved in the dispute. Each person has a chance to speak, to be heard and hear each other. The goal is for the parties to create their own solution and to resolve the conflict. Any agreement comes from the parties themselves and not from the Mediator.
Mediation can be used in a variety of situations:
You can choose to go on your own or,
It can be part of a court process, where the court sometimes require people to go to mediation because it can help both sides find a solution that works for them and it can also be faster than going to trial.
It is a voluntary process whereby the Mediator helps the people to listen to each other, find common goals and attempt to reach an agreement. During the mediation, you cannot be forced to agree to anything. When no agreement is reached, you can still have the matter decided in court.
What is a Mediator
Now lets discuss the role of the Mediator. The Mediator:
is there to manage the process in an impartial way.
they will help you talk about the issues
focus on your concerns and issues and guide discussions so you can better understand the other party’s views
Assist you in discussing difficult topics so that you and the other party can develop your own solution
The Mediator is not there to judge, to say one person is right and the other wrong, or to tell you what you should do. The Mediator will not recommend the terms of an agreement, that is up to you and the other party and will not push you into settling your case. The Mediator is in charge of the process of seeking to resolve the problem.
The standard approach of mediation is facilitative mediation. The Mediator is not there to judge or to say that one party is right or wrong, or to tell those involved what they should do. The Mediator’s focus is on drawing out the needs and interests of each of the parties, to help to solve the problem but not the outcome.
The second type is known as Transformative Mediation. The parties experience a crisis of human interaction. The interaction of the parties have broken down and they need help in overcoming that crisis in restoring positive, constructing and connecting relations. The Mediator’s focus will be on getting the parties to feel heard and understood by others which in turn will lead to better communication and discussion of issues.
The third type of mediation is evaluative mediation. The Mediator discusses with each party to the problem, the strengths and weaknesses of their case, the costs and risks of going to trial, making selective disclosures to each party in an attempt to bring them together and finally finding a proposed settlement. The focus will be the likely outcome of the problem
Mediation usually lasts for one full day. It creates a safe environment where parties are able to communicate and work towards the restoration of a positive working relationship. Mediation is a structured process which enables the parties to identify, consider and discuss their own and each other’s current and future needs.
How does mediation work?
At the start of the mediation process, the Mediator will contact you to arrange an individual Pre-mediation meeting. The Mediator will:
Provide an explanation of what a mediation is
Explain the mediator’s role in the process
Address any questions and address any fears
Secure a commitment from you to mediate
You will then be invited into a mediation meeting with the other party to the dispute.
The Mediator will
In a joint session, the mediator will ask each party to make an opening statement. The purpose of the opening presentations is an opportunity for everyone to present their concerns and issues of the case. It will allow the mediator to assess how far apart the parties are on the issue
Following the opening statements, the mediator will conduct a series of one-on-one private sessions with each party, seeking to learn more about each party's expectations and to test the parties as to the strengths and weaknesses of their case.
During the mediation the Mediator will seek to explore the possibility of moving towards a settlement, by encouraging the parties to make offers, counter offers and solutions that with work the parties.
If a settlement is reached which is acceptable to all the parties, the mediator will help draw up an agreement, which will become binding once it is signed by all the parties.
How can I prepare for mediation?
As you are preparing for mediation, understand the nature of the dispute and the reason for why you are in mediation.
You will be asked to prepare a short Opening Statement which is read out at the mediation. The Opening Statement is an opportunity for you to explain the issues and concerns upon which you want the Mediator to concentrate on. This statement will form the basis of your position in the case.
In your Opening Statement it’s important to think about what is important to you? what are you trying to achieve? What may be your best outcome? What may be your worst outcome? What might be something you can live with?
Make a list of your strengths and weaknesses of your case and try to think about the risks if you are unable to reach an agreement and if you do you further to a court hearing.
Think about what the other party is trying to achieve. If you can bear those in mind and come to the mediation with an open mind and be prepared to really try to talk and negotiate openly in safe and confidential environment it will give you the best chance towards trying to reach an outcome
What should you not say during mediation?
Mediation is confidential and protects your privacy. The mediator cannot discuss what happens except in very limited circumstances. What is said in a mediation meeting cannot be shared. The mediator will explain to you about confidentiality and the exceptions at the start of the process
There isn’t anything you have to worry about saying provided you tell the Mediator during an individual private session. It’s a safe, open, and honest way to discuss your issues and concerns on any topic within the dispute which will be entirely confidential. Therefore, whatever is said to the Mediator will not be shared with the other party. This confidentiality is essential to the mediation process. You can be confident to share information and ideas with the Mediator without worrying about the other party’s reaction.
Benefits of Mediation
Its an alternative way to resolve disputes
A Mediator will help guide the conversation
A Mediator will assist you in identifying issues and options
A mediator will not take sides or decide the outcome
It lets your voice be heard
It helps you understand the other party's view
It helps the other party understand your view
You can express your needs and interests openly and honestly
The mediation sessions and meeting are private and confidential. They are not open to the public and are not recorded
While most mediation meetings taken place in person, you have the option to request a mediation session to be held on line with the Mediator
Through mediation, you will be able to work together, create a solution and to resolve the conflict.
You are in control of the mediation process and the results
Mediation can be less stressful, faster and cheaper than going to court
So there you have it. These are ways you can use mediation outside of the court system. It can be used for matters as contract disputes, conflicts within the workplace, neighbour and noise disputes and others.
Now I want to turn it over to you. Take this case study and read our experience as to how we supported individuals within the mediation process.
Winnie Onyekwere LLB LLM
Accredited Mediator
If you require help, we would be happy to provide you with support for your mediation matter. Just connect with me below or if you know someone who might be interested share this with them.
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