Thinking of taking a dispute to a lawyer? Fed up of long drawn out legal cases? Try mediation first.
Reluctant to ask what it is? It’s not a silly question. Many people think mediation is for divorcing couples or warring nations. It works in many other disputes and disagreements. It’s not just another kind of legal process, it actually changes the way you see the situation and gives you more options. So what is it?
Definition of Mediation
The Chambers dictionary definition is
“to act as the agent seeking to reconcile the two sides in a disagreement.”
A technical definition might be
“a voluntary process which is cheaper, quicker and less stressful than going to court. It is most effective when it is used earlier rather than a last resort. It is confidential, nothing is shared between parties unless permission is given. What is said in the meetings is non-binding to the point of agreement. It is “without prejudice” which means what has gone on in the process cannot normally be used in any company procedures or court action.”
This, however, doesn’t really tell you much about what purpose it serves, how it works, or why it is a useful process.
The aim is for the parties to find their own solution to the conflict/disagreement/problem. Unlike the court, where a judge tells you what to do, in mediation, you decide what the answer is, and listen to the other person’s ideas about the solution. Together, you find something that works for both of you. Even if you don’t agree, the process clarifies issues and helps you see other options.
As mediator, we act as a “sat-nav” for the conversation. We keep the discussion on track, clarify the issues and “translate” if necessary. We are not there to take sides or give a judgment, though we may ask challenging questions to help someone see the wider picture.
We ensure that everyone has a voice, people listen to each other and to help find new ways of solving problems. A successful mediation is much more likely to result in lasting solutions and maintaining relationships than going to court, because it is a solution to which all parties contributed.
At the start of the process, the mediator will explain their mediation process as it may vary depending on the case and parties involved. It is important that everyone understands the process and agrees to take part. If only one party wants to resolve things, mediation can’t take place. In situations like this, some of our mediators offer conflict coaching or training to help manage the conflict.
If everyone agrees to mediation, mediators will contact each party, clarifying their view of the situation, what is important for them, and what they would like to achieve. It gives parties a chance to vent safely and calm down enough to think straight. Often, as people work through this, they come up with other ideas and solutions.
The mediation may be done in one day or in several sessions. Mediation can take place by email, phone, face to face and over a secure video link.There may be individual or joint meetings, the mediator will ensure that both parties are treated equally and will use their judgement to structure the mediation process as it goes.
In both individual and joint meetings, we help each person see it through other’s eyes. Mediation focuses on the future, rather than the past. We may ask “What could you do to make it more likely that they would do what you want?” This often brings up alternative resolutions/ideas/suggestions.
Confidential: Everything that is said in the mediation discussions is confidential. There are exceptions to this, depending on the circumstances and the type of mediation. Your mediator will explain in more detail any exceptions that might apply in a particular case (for example a safeguarding issue, or if someone has benefited financially from a crime). We will also co-operate with court orders.
Voluntary: The participants choose whether or not they want to use mediation. They are free to withdraw at any time. Mediation is non-binding in most instances(certain types of mediation result in a legally binding document) ; the parties are responsible for keeping any agreements they make. Some mediated agreements become legally binding court orders.
Non-judgemental: Mediators do not make judgments about the situation or tell the parties what to do.
Independent: Mediators are independent of the dispute and don’t take sides. They help both parties equally.
The results of mediation vary from situation to situation. In almost every case, even when there has not been agreement, participants feel that mediation was a worthwhile exercise. Most mediations, as well as resolving issues, clarify understanding and bring closure. The earlier you go to mediation, the more likely you are to have a successful resolution.
Each mediator has a different experience and personality. If you would like to have a confidential discussion about whether mediation would be appropriate, or what type of mediator would be best, talk to one of our mediators or have a look at their websites. All our mediators are professionally trained and accredited.