Mediation is a process when two parties try to resolve disputes without going to court. A third party person, called a mediator, helps them negotiate a settlement. A mediator cannot make decisions on behalf of the parties involved in a dispute. He can do everything in his power to get the best possible result- an agreement signed by both parties, sometimes called a memorandum of understanding. If both parties agree, the agreement can remain confidential as well as all related documents and disclosures.
When to Go to Mediation
First you need to identify the issues to be mediated and the contract. Depending on the nature of the contract you have with other party, it may be clearly stated that you need to go to mediation before court. It is never too late to go to mediation, even during litigation. If a mediator has experience, both parties involved (sometimes even more than two parties) can hope for a positive outcome.
If you care about the relationship with the other party (in most cases that is a business partner) and you want to be on better terms, avoid going to court, and try to solve the issue with help of a mediator. Mediation is more likely to resolve disputes and problems than a formal court hearing.
Also, if you don’t want to lose much time on going to court, mediation is a better choice. A mediation date can be set quicker than a court date and while you have to attend all the mediation sessions the process will be completed more quickly.
When is Mediation Applicable
What is the Role of a Mediator?
Not every mediator has the same role and responsibilities. It depends on the disputed parties, and the complexity of a problem. In less complicated disputes, a mediator can have a neutral role, whereas in complex situations and emotional disputes, a mediator can have a more dynamic role. The same goal that every mediator has is to shape the best possible outcome for both parties. But these are just different techniques that a mediator can apply. At the end of the day, a mediator cannot make any decisions.
Here are some issues a mediator can help with:
- Encourage both(all) parties to share information
Present the views of one party in a way the other part can understand them
- Make the parties concentrate more on the future than on the past
- Define the differences between the parties’ perceptions and interests
- Analyse the issues
- Encourage the parties to express their concerns and feelings
Point out the alternative ways to settlement in a way the parties understand what is realistic
- Suggest solutions that will satisfy both parties
First of all, the whole process is confidential and both parties need to agree to it. Parties should decide if they want additional lawyers, other than a mediator, to be present. In certain cases, parties cannot make their minds up about the right mediator, so there should be an alternative system to decide upon a mediator. Also, parties should hire a bilingual mediator if they don’t speak the same language.
As for the mediation agreement, it should have a date, time and location of the meeting. Every mediation meeting should be scheduled in advance. The parties should agree about the location and the time limit of every session. The parties pay the mediation costs equally.
In the agreement, all the responsibilities of the mediator and the parties should be stated. The mediator’s mandate and a provision for the agreement (in case the dispute is resolved) should be defined.
Advantages of Mediation
It is more likely that the parties will be on good terms after mediation than after litigation.
Mediation is less confrontational and oppositional than litigation. During the litigation parties are opponents and their relationship cannot continue after such procedures. On the other hand, the process of mediation doesn’t have that approach. It has the aim to create conciliation among the parties.
You will save much time
The process of mediation is quicker than litigation and parties can settle in a much more reasonable time frame.
The outcome of the agreement is in your hands
Mediation implies that both parties make decisions about the final agreement. The outcome is equal to your and the other party’s needs.
Mediation is less expensive than going to court
You are probably aware that court costs can be very high. Given that the whole process can be prolonged in some cases, the longer it lasts the more expensive it will be. Mediation can finish quicker and thus with less costs. Of course, you need to have a good mediator who will help you come to a settlement that is favorable to both parties.
Having the presence of the neutral party controls the flow of the dialogue and makes it less intense. Mediators know how to deal with negative sparks between the parties and how to calm the situation. Yet, both parties take part in the outcome and share the costs of the mediation process. Moreover, the process is less formal than litigation.
These are the advantages of mediation you should have in mind if you have a dispute with someone. Of course, mediation cannot settle every dispute, otherwise no one would go to court. But at least, it can make resolve some issues or make the whole court appeal shorter.
If you need a mediator, call our law office today to schedule a free consultation. One of our lawyers will help you figure out what is the best solution for your situation. Don’t hesitate to ask for help of a lawyer, or a mediator, when you are facing legal issues.