April 16, 2015

Mediation: The Other Tool in Your Toolbox

Mediation is a powerful tool for tackling private disputes of all kinds, particularly where privacy is preferred and the parties need a viable continuing relationship. Mediation is a proven process that allows people and organizations in dispute to resolve their conflict themselves, making for better outcomes, saving time and money, and avoiding the risk and cost of litigation.

Mediation really is a unique method of alternative dispute resolution because it allows the parties in a dispute the opportunity to reach a mutually acceptable agreement themselves, with the assistance of a trained mediator.

Mediation is also highly effective: It has been estimated that more than 80% of disputes that find their way to mediation are resolved there.

Who is the Mediator? 

The mediator is a neutral third party with no prior connection to the dispute. The mediator is not an advocate for either side, and is not a judge or arbitrator. No outcome is imposed on anyone. Instead, the mediator relies on specialized training to help the parties get their interests on the table and then negotiate solutions to meet those interests.

Win/Lose: The Courts and Arbitration

Traditional dispute resolution mechanisms (the courts or arbitration) tend to focus on “win/lose” solutions. The conflict is resolved by a neutral third party (the adjudicator, judge or arbitrator) who hears the evidence and the positions of both parties, and makes a decision. On any given issue, this decision will accept in whole or in part the position of one party to the dispute; and by necessary implication, reject all or part of another party’s position. Subject to any appeal rights, the decision is binding on the parties.

Only 5% of court cases end with a judge’s decision. The other 95% are settled. Settling often takes the form of compromise, with each party giving in or giving up to achieve some closure. The advantage of compromise is that the parties now have certainty about the dispute’s outcome. However, compromising can leave everyone feeling entirely unsatisfied, especially in light of the energy, time and legal expenses they incurred to achieve it. Moreover, in some cases, compromise on the existing dispute may not resolve underlying conditions that could flare up down the road in the form of a fresh dispute among the same parties.

Win/Win: Mediation as the Alternative to Court

Mediation is not adversarial, although it depends on frank, open dialogue within a structured process managed by the mediator. It is also not group therapy or counselling, although key relationships are often repaired, and even improved, through the mediation process. Mediation is a negotiation-based dispute resolution tool that focuses on identifying the interests and needs that lie behind the parties’ positions. Once everyone’s interests are actually on the table, the process facilitates “win/win” (or at least “satisfied/satisfied”) outcomes that are built to actually address those interests.

Mediation is private and confidential, and participation at every stage is completely voluntary. The mediator makes no decisions and does not impose positions or legal rulings on anyone. Instead, through a six-step mediation process, the mediator helps the parties design their own outcome to meet their mutual interests.

Benefits of Mediation

  • Mediation is particularly effective where privacy is preferred and the parties need a viable continuing relationship. Mediated disputes do not get picked up by the media.
  • Mediation is cheaper and faster than most litigation or arbitration. The six-step mediation process is not weighed down by the technical legal rules that accompany litigation and arbitration.
  • While lawyers can be present, mediations often take place without involving lawyers at all.
  • The parties control 100% of the outcome. Participation at every stage is absolutely voluntary. Agreements negotiated in mediations are generally better suited to the parties and are therefore much more likely to be honoured by the parties.
  • At least 80% of the cases that find their way to mediation are resolved there.

For a printable PDF version of this article, please click the link below:
Mediation: The Other Tool in your Toolbox

Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.