Mediation is a process in which parties to a dispute endeavour to reach a settlement though negotiations, facilitated by an independent third party known as the ‘mediator’, as opposed to embarking on litigation proceedings. Through these facilitated negotiations, the mediator assists the parties in identifying the issues in dispute and assists them in developing resolution options in reaching a mutually acceptable agreement. If mediation does not succeed, the parties’ rights to resort to formal litigation proceedings remain intact.
The Mediator’s role is aimed at facilitating a settlement between the disputing parties. Therefore, he or she cannot lead the process, neither can he or she dictate the outcome nor determine the credibility of any party participating in the mediation process. A mediation process is private, (on a without prejudice and confidential basis) and is designed to be speedy, flexible, informal and cost-saving. The process of mediation is also reconciliatory in nature, particularly in instances where personal or business relationships have broken down.
One of the most fundamental benefits for parties using the mediation process, is the expedient nature and cost effectiveness of the process. Mediation has the potential of having a dispute resolved in a matter of days, as opposed to years, as is usually the case when disputes are adjudicated through litigation processes. Mediation is also more cost effective as the parties involved would pay a set mediation fee and split the costs of the process, thereby avoiding significant, unpredictable litigation costs and legal fees.
All settlement agreements should be made in full and final settlement of the dispute at hand in order to avoid either of the parties having an opportunity of reopening the matter at a later stage. A settlement agreement, achieved through mediation also has the benefit of being made a formal Order of Court, which is binding on both parties and enforceable in Court should the need arise. If the mediation process is unsuccessful, parties will still have the benefit of reverting to the conventional litigation process. Even time spent in a failed mediation process could significantly reduce subsequent litigation costs, as the mediation process may assist the parties in narrowing the issues in dispute.
Parties are able to represent themselves during the mediation process as the process is simple enough to understand, and most of the formal litigation procedures and rules of evidence may be dispensed with. Due to the structured, yet informal and flexible, nature of mediation, a more comfortable and non-adversarial environment may be created for disputing parties. Through the mediation process, each of the parties have their points conveyed personally and accurately to the opposing party/s in a controlled and protected environment which may encourage effective communication and possible reconciliation between disputing parties. This is often not the case in traditional adversarial litigation processes where the attorneys handle negotiations during the litigation process. Parties to mediation are, therefore, able to participate personally in the process of the resolution of their dispute with the added benefit of being guided by the mediator through the process.
Due to the private and confidential (and without prejudice) nature of mediation, any information shared during these proceedings cannot be disclosed outside of the mediation session. Any without prejudice disclosures made during the mediation process will not be admissible as future evidence in any Court. The benefit of confidentiality during the mediation process provides a safe environment within which parties can be encouraged to make full and frank disclosures which may provide significant opportunities for the exploration and creation of solutions to the dispute that might not be identified or that could not be imposed by a Court through civil or commercial litigation.