What is mediation?
Mediation is negotiation assisted by an independent person (the mediator), who controls the process. The mediator does not make a decision regarding the dispute (unless the parties agree to this happening) and it is up to the parties to decide the outcome.
What are the advantages of mediation?
Mediation is less expensive than litigation. It allows the parties to explore options to resolve the dispute which may be more flexible than the remedies available to a judge or an arbitrator. It may also help to preserve any ongoing relationship between them.
A mediation meeting is less formal than a court hearing. The parties and their representatives usually meet with the mediator in person. As a result, it can usually be arranged earlier than a court hearing date.
The discussions between the parties at a mediation are “without prejudice” and confidential. “Without prejudice” means that anything said during the course of the mediation cannot be used subsequently in any arbitration or court proceedings, except in limited circumstances.
What are the disadvantages of mediation?
Mediation invariably involves compromise in order to reach a settlement and depends on each party’s willingness to resolve the dispute. As a result, there is the possibility that the dispute may not be resolved at a mediation.
What happens at a mediation?
The mediation process can be tailored to meet the needs of the parties. A mediation meeting usually involves the mediator makings some introductory remarks about the mediation process.
Each party is then given an opportunity to make an opening statement setting out that party’s perspective of the dispute.
After the opening statements the mediator assists the parties to identify and discuss the issues between them and ultimately explore solutions for settlement.
As part of the process the mediator may “caucus” the parties (i.e.) meet with them and/or their representatives in private to discuss certain aspects of the dispute and to explore possible solutions. Any information disclosed to the mediator during a caucus session will not be conveyed by the mediator to another party without express consent.
If a settlement is reached then the parties or their representatives will draw up an agreement or at least heads of agreement for the parties to sign prior to leaving the mediation.
Mediation – Peter Davey, Auckland Barrister | Mediation