A Lawyer

What is Mediation

Many professionals who have not had experience of a structured mediation say they know all about mediation, as it is something that they do all the time, when they try to negotiate a settlement between their Client and the other party's Client. This process may be successful, but it is negotiation that is taking place, not mediation.

The essential feature of a structured mediation is the presence of an independent neutral or Mediator. The Mediator shapes the dynamics of the negotiations that take place between the parties and creates an atmosphere that permits and encourages problem-solving and positive, optimistic thinking, to assist the parties in reaching an agreement.

In litigation the judge is imposed by the system. A Mediator, however, is selected by the parties. His or her mediation experience and knowledge of the sector will be known. He or she may already be known to the parties or their lawyers themselves. The quality of the neutral is therefore controlled by the parties.

The Mediator:

• manages the process;
  
• gathers and collates information;
  
• reframes issues to focus the parties on the key points that could form the basis of agreement;
  
• allows the parties to vent their emotions in a controlled situation;
  
• assists in overcoming deadlocks;
• communicates offers and counter-offers and presents these in a
  non-challenging and non-judgmental way;
  
• acts as a draughtsman in preparing the contract with the parties'
  legal advisors.
• Mediation can only work if both parties wish to participate in it.

This form of dispute resolution permits the parties to retain virtually all of the power, giving them ownership and control over the proceedings.

Mediations can usually be set up in a matter of days if the parties or their advisors can make themselves available. According to the Centre for Effective Dispute Resolution (CEDR), the average length of a mediation in 2000/01 was 1.25 days, with the majority of two-party matters settled within one day.

If you are contemplating using mediation as a dispute resolution procedure you should be aware that unlike Court proceedings, mediation is not about winning or losing; it is about exploring possible solutions within the spirit of cooperation, understanding and mutual respect. With the help of our excellent Mediators successful settlements can be achieved through innovative ideas which are not constrained by legal process or indeed likely to be available in any Courtroom.

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