Professional Documents
Culture Documents
What is mediation?
What’s the difference between mediation and arbitration or litigation?
What are the typical steps in a mediation?
How do we get started? (amended 16 October 2000)
What happens at a mediation meeting?
Do I need a lawyer?
Who should attend meetings?
How can I prepare for the mediation? (new 16 October 2000)
What type of venue is needed for the mediation meetings?
Who pays for the mediation?
What about confidentiality?
What does the mediator do?
Should the mediator use his or her expertise in the substance of the
dispute?
What form does the outcome of a mediation take?
When is the mediation finished?
What if agreement is not reached in mediation?
Further information
What is mediation?
Mediation is a well-accepted process for improving relationships and resolving
disputes.
It is a consensual process in which an independent and impartial person, the
mediator, works with disputing parties to help them explore and, if appropriate,
reach a mutually-acceptable resolution of some or all of the issues in dispute. The
mediator has no decision-making authority regarding the outcome, and should
not try to impose a settlement.
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The aim of these procedures is for the mediator to help the parties to improve
their interaction and, if appropriate, to reach agreement on some or all of the
issues in dispute.
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Do I need a lawyer?
Actually you do not need a lawyer in mediation, even if the other side has one.
However, I strongly advise you to get legal advice before the mediation. Also, I
encourage you to bring your lawyer to the mediation meeting. In my experience
lawyers are always helpful in explaining the legal issues, providing input on legal
rights, and checking the outcome agreement.
However, since mediation is not an adversarial process, the lawyer is not
involved as advocate. Other issues (ie other than legal issues) may need to be
discussed and incorporated into the outcome. Also, the outcome does not have
to be legally "right". You need to make your own decision, by considering the
various issues and risks, and agreeing to an outcome which is better that you can
otherwise be sure of achieving. A lawyer will help you do this, as your adviser.
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The general law may extend a duty of confidentiality on others attending the
mediation. To put this beyond doubt, the parties may wish to have any
managerial, technical or other resource people involved sign a memorandum of
confidentiality.
At a separate meeting with a party (called a "caucus"), the mediator may also
hear information which is to be kept confidential from other parties.
Information must not be divulged by the mediator. However, the mediator should
not keep confidential any knowledge of a serious crime to be committed or of a
physical danger to any person (this is a general principle of law, and not
something dependent on the agreement of the parties).
It should be realised however that, whilst information disclosed at the mediation is
itself confidential, it may still put the other party on alert as to additional evidence
it might seek for any subsequent adversarial hearing.
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These notes are not intended to be relied upon in lieu of proper legal advice.
It is natural to assume that the parties involved in a dispute should settle their
own conflict - it is their business, their concern, their hassle. But they may be the
least equipped to untangle the hostility, loss of trust, suspicion, secrecy, biased
communications, and position taking involved. The repetition of patterns and
explanations that have become habitual and twisted can render the disputants
impotent.
The parties involved in the conflict are often bogged down into an argumentative
mode of thinking. Even with the best will in the world, they simply cannot carry out
certain thinking, because it would not be consistent with the positions they are
taking in the conflict.
Direct negotiation between disputants without a third party allows the parties to
retain their privacy and independence, but also has serious liabilities. It can
heighten power differences and intensify the confrontation. Any compromise
reached may merely become the basis of future conflicts. Direct negotiation can
continue the fight, extend the coercion, support the manipulation, and merely
make the conflict more covert.
When we are locked into either-or thinking, our logic (no matter how tight and
tidy) has a fundamental limitation. The parties most directly involved in a dispute
are in the worst position, and are the least equipped to settle the dispute
constructively. More effective means of resolution inevitably come from a third
party - an outside mediator who does not think in an either-or manner or apply
conflict to resolve conflict.
A third party mediator can introduce an intervention to break the negative cycle,
and help the parties improve the quality of their solution.
A third party mediator can provide the disputants with alternative and additional
information, experience and expertise. Mediation offers alternatives beyond those
the parties can generate themselves. Mediation invites and often ensures full
participation and communication between the parties.
The choice of mediation may arise from dissatisfaction with the court system and
its costs, its impersonality, its slowness, its prejudice, etc. Whatever the
motivation, personal involvement in selecting a dispute resolution process and
self-expression throughout will deepen satisfaction and improve the quality and
acceptability of the final outcome.
Mediation is especially appropriate where:
These notes are not intended to be relied upon in lieu of proper legal advice.