Mediation, sometimes known as “Alternative Dispute Resolution”, is becoming a well recognised means of resolving all kinds of disputes.
Below is an overview of how the Mediation process works, and also an outline of some of the other situations where Mediation may be useful.
By definition Mediation “is a means of resolving disputes by taking the matter to a third party experienced in such cases and allowing the parties to hear the independent view of the Mediator in order to move toward settlement.”
What is Mediation?
Mediation is part of a system of Alternative Dispute Resolution and is considered to be a key tool for the resolution of disputes between parties. It is a voluntary, non-binding, non-adversarial and without prejudice dispute resolution process that allows the parties involved in the process to find a mutually acceptable outcome. This is unlike an adversarial litigation process in front of an independent third party who has the power to adjudicate on the matters before him/ her and impose an outcome. Whilst a Mediator is an independent third party the role of a Mediator is one of facilitation rather than imposition of an outcome. Therefore Mediation allows parties to avoid the litigation of a dispute in front of a third party.
The Mediator is an independent facilitator and as such will endeavour to facilitate the parties in finding a mutually acceptable outcome to resolve their differences whilst upholding and protecting the integrity of the Mediation process. The Mediator does not at any time throughout the Mediation process negotiate on behalf of one or either of the parties, and nor will the Mediator impose a settlement or outcome on the parties.
The independence and neutrality of the Mediator is, of course, crucial. Both sides must invest trust in him and the ability of a Mediator to build rapport with both parties is vital. During the process, the Mediator will receive and retain information that is wholly confidential to one party. He must be trusted to protect that information, unless and until he has permission to reveal it. Proper training, accreditation and evaluation of a Mediator is therefore vital, because the opportunity for settlement that Mediation provides can be lost [and a bad situation made worse] if the Mediator is insufficiently skilled.
A Voluntary Process
Mediation is an entirely voluntary process and at any time during the process any of the parties can withdraw from it and invoke appropriate formal procedures such as an organisational grievance procedure or refer the matter to an appropriate external third party forum. Likewise, if after having participated in the Mediation process a party is dissatisfied with the outcome they can invoke formal organisational procedures or refer the matter to an appropriate external third party forum.
Dispute Types Suitable for Mediation
Commercial, Family and Employment Law disputes
The employer is willing to consider referring the matter to Mediation and the parties involved in the dispute are of a like mind. Because the parties to the Mediation process are allowed to find their own solutions to the dispute without pursuing the matter through litigation there is a greater chance that ‘normal’ working relationship can be restored. The sooner the Mediation process is adopted, the more successful and constructive the outcome is likely to be.
The Mediation Process
A typical Mediation process has six steps as follows:
The Mediator holds a preliminary consultation with the point of contact for the employer and as a result of this meeting the mediator should:
have details of the parties to the dispute to be mediated
understand the nature and context of the complaint(s)
establish whether or not the parties will be accompanied by an advisor
establish if any formal procedures have been invoked or is the matter subject to pending legal proceedings
appreciate the level of understanding the parties in dispute have about the process of Mediation
The Mediator meets the parties individually to explain what the Mediation process is and to set down the ground rules. The agreement of the parties to mediate the matter will be formally sought.
The Mediator meets the parties jointly to allow opening statements on the matters in dispute to be made by each party.
Following on from the opening statements there is the process of fact finding and issue definition. This process can happen when the parties are together or each party can meet the Mediator in a separate room whereby this process of fact-finding and issue definition can be facilitated.
Finding the solution(s). Through the process of joint discussion the mediator facilitates the parties to find win/ win solutions that are mutually acceptable.
The solution(s) are captured on a formal agreement that is reviewed by each party to ensure that they are satisfied that the content reflects the understandings reached as a result of the Mediation process. The parties should then be invited to put their respective names to the agreement.
Benefits of Mediation
Unlike other internal or external processes, Mediation works because the parties themselves provide the answers. No-one judges, decides or resolves the dispute, other than the parties. It is, after all, their dispute, and therefore a ‘solution’ will only work if they agree to it. The key to this is the focus that the Mediator puts on the future, not the past. Unlike other processes, which are designed to find out what has happened, Mediation focuses on what will happen, and, for example, how the parties will work together in the future, or how incidents of discrimination can be avoided.
How & When To Mediate
Do not be afraid to propose Mediation. It is not a sign of weakness – rather, it shows a willingness to resolve, not perpetuate, disputes. There are many Mediation service providers, and almost all Mediators will accept direct instructions. Many courts have Mediation schemes, and will advise on where to find Mediators. There is no ‘set’ form of Mediation, and the Mediator will guide the parties through the process. Not all disputes are right for Mediation. If a party is seeking to establish a precedent, then Mediation would not be right.
Partner in Morgan McManus Obtains Certificate in Mediation Training
Having completed seminar attendance and assignments at the Queens University of Belfast, Brian Morgan, partner in Morgan McManus Solicitors was awarded a Certificate in “ADR and Mediation Training” on the 27th October 2004. The benefits of ADR (alternative dispute resolution) and Mediation training have been well recognised by the Courts.
Continually, the Courts are encouraging parties to avail of Mediation in order to resolve disputes at minimum cost and expeditiously. Morgan McManus Solicitors have always been conscious of encouraging clients, whether they are in family, business or employment disputes, to resolve those disputes with least possible hurt to family or damage to business and the availability of this service to clients of Morgan McManus Solicitors will be of definite advantage.