There are many definitions of mediation or ADR (Alternative Dispute Resolution) but to keep it simple
‘Mediation is a process of two or more people meeting with an impartial third party to help reach a mutually agreeable resolution’
Unlike the pharaohs of Ancient Egypt who were said to be the mediators between man and the Gods, todays mediators are more earthbound and facilitate communication between mere mortals in dispute. Whilst the participants may also have solicitors on board there may still be an impasse with neither side prepared to give quarter.
So what can a mediator offer which the legal team cannot?
Mediators are neutral, solicitors are not, nor should they be, that is not what they are paid to be. Their clients can share information which is private and without prejudice but the solicitors do not get to hear the same from the other side. Neither side can afford to weaken their case.
During the mediation, the mediator or ‘neutral’ may speak to the participants together but mostly in breakout rooms. This allows the participants to relax a bit and the mediator to peel back the layers to discover what the participant really needs to be able to settle the dispute and gain closure.
Mediation creates a forum where a person can express what the real issues are. Money may be part of the solution but is not always the cause of the dispute. A mediator may ask probing and challenging questions to which they will not only listen to hear what a person is saying but also to hear what they are feeling.
Power imbalances in a negotiation may leave a person felling invalidated, bullied or overwhelmed preventing them from expressing what they actually feel, want or need.
A mediator will spot where imbalances of power exist whether financial, hierarchical or emotional they will create a better balance. Participants might not want the other party to know that they are dealing with personal problems such as bereavement, financial difficulty or illness. Nobody wants their vulnerabilities revealed but they remain safe and confidential with the mediator.
The confidential information provided by each side can create a point to restart the communication. Information is NEVER shared with the other side without the full permission of the participant but the mediator is in a unique position to determine where the common ground or understanding between parties may lie. The resolution may be more about an apology or an admission of accountability than a large financial settlement.
The most important thing mediation offers is that the participants have total control over the agreed outcome which is unlike arbitration and litigation.
If an agreement is reached it is drawn up at the end of the mediation and signed by both parties forming a contract between them. In the event of no agreement or the agreement is not adhered to, litigation is still an option and the case unharmed by the mediation.
Mediation is the economical, confidential, safe and relatively fast vehicle for dispute resolution and what is more, mediation works!