Services - Mediation
When Mediation is Especially Appropriate
At its most simple, mediation is a third party-facilitated negotiation. It is appropriate in any circumstance in which two or more persons or organisations have diverging interests or objectives (not necessarily a “dispute”), and where the parties recognise the importance for them of resolving their differences and “moving on”.
Due to its nature, mediation is especially appropriate in some circumstances, such as those in which:
- The parties wish to preserve their relationship (commercial, professional or personal) after the conflict or other issue is resolved;
- The orders a court could make might not meet the commercial needs of the parties;
- A public airing of the matters at issue could be damaging or the parties wish to ensure low visibility for their dispute or discussions;
- Complex or otherwise challenging issues of law or jurisdiction arise which are likely to consume much court time before the substantive issues can even be considered by a judge; and
- Where time is of the essence in terms of resolving the dispute. If the parties are committed to the process, a mediated resolution need take no more than a single day and the lead-in time may also be as brief as the parties wish.
Anatomy of Mediation
Mediation is a relatively informal process at which each party attends with its necessary advisers. It is critical that each party’s team includes a decision-maker, i.e. a person who has the capacity and authority to decide on settlement terms that may evolve, without having to refer to anyone outside the mediation team.
There are five phases to a typical mediation:
- Preparation Phase: Involving the agreement to mediate, selection and appointment of the mediator, agreement of the terms of and the detailed arrangements for the mediation, agreement of the mediator’s fees, the nature of any information that is to be exchanged by the parties, and confirmation of the confidentiality and without-prejudice nature of the mediation discussions;
- Opening Phase: Requiring the parties to meet in a joint plenary session, at which the mediator gives an introduction and at which the parties make a short opening statement to each other setting out their respective positions and objectives;
- Exploration Phase: Involving private or caucus meetings between each party and the mediator, at which the mediator seeks to explore the nature of each party’s case, the party’s aims and objectives, and generally to engage in “shuttle diplomacy”. The ground is prepared for settlement negotiations between the parties by clarification of their respective issues and agendas;
- Negotiation Phase: Involving the direct and indirect negotiations with the assistance of the mediator who challenges each side to explore the strengths and weaknesses of their position and what their best and worst alternatives are to a negotiated agreement. Working groups (for example between experts) may be established as parties discuss the issues in an attempt to break any deadlock; and
- Concluding Phase: The lawyers representing each side collaborate to draft a legally binding agreement that reflects the shared solution that the parties have, with the assistance of the mediator, reached.
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