What is Mediation?
Simply put, mediation is about having conversations. It is essentially a process of working with individuals who are in conflict to move forward towards an agreement through facilitated conversations.
Mediation may be thought of as “assisted negotiation.”
Negotiation may be thought of as “communications for agreement.”
Hence, mediation is “assisted communications for agreement.”
Mediation is a quick and effective alternative to court and other costly legal interventions for organisational, commercial and interpersonal disputes.
Why have a mediator?
People choose it for a variety of reasons, the most common reason being that communications with another or others have become ‘stuck’ and are unproductive. Stuck conversations often lead to conflict and a break down in relations which can be stressful, time consuming and costly for those involved. Those involved might be of a personal relationship (such as the relationship between husband and wife, parent and child, a neighbour or siblings), or might be a professional relationship (such as that between work colleagues) or a relationship between service provider and service user (such as that of a tenant and landlord or builder and client). Conversations might be stuck due to both parties avoiding a difficult topic. Sometimes conversations become stuck because neither party can agree – conversations keep going around in circles.
Conflict occurs when people (or other parties) perceive that, due to being unable to move conversations forward, there is a threat to their needs, interests or concerns. Consequently, disputants tend to perceive limited options and finite resources available in seeking solutions.
Mediation does not seek to appoint blame or provide solutions, but rather help ‘stuck’ conversations move forward, gain momentum, enabling disputants to find their own, mutually agreeable solutions. By resolving disputes in mediation, people determine for themselves what is important and ultimately the outcome of the situation. Through mediation, you avoid both the “win-lose” and “lose-lose” outcomes associated with court. Many people who “win” in protracted litigation report that the overall time, energy, and monetary commitment associated with the process comes at an enormous cost and loss. It goes without saying, that those who lose in litigation feel even worse. Mediation can spare you from all of this and enable you to move forward from disputes efficiently and effectively.
What Are the Benefits of Mediation?
Mediation works It has a high success rate (85% average*) and low cost.
And the following is guaranteed! . .
You can leave at any time for any reason, or no reason. Impartial, Neutral, Balanced and Safe
I will not favour the interests of any one party over another, nor will I favour a result in the mediation. I will endeavour to address and rebalance any detected ‘power imbalances’ between the parties. Furthermore, I will acknowledge any substantive biases noted during discussion. I will ensure that those involved reach an agreement in a voluntary and informed manner, and not as a result of coercion or intimidation.
As no participant in mediation can impose anything on anyone, everyone is motivated to work together to solve the issues and reach best agreements.
Each participant has complete decision-making power over each and every provision of any mediated agreement. Nothing will be imposed on you.
Mediation is confidential. Mediation discussions and all materials developed for a mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalised and signed mediated agreement. At our first meeting I, will describe to you the extent of mediation confidentiality and exceptions to that confidentiality. A confidentiality form will be signed.
The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutually acceptable experts can be called upon. However, expert advice is never determinative in mediation as you (the participants) always retain decision-making power. Whether legal advice is sought is, ultimately, a decision of each mediation participant.
Self-Responsible and Satisfying
Participant satisfaction and the likelihood of compliance is greater than that of a court option due to the participants’ ability to voluntarily resolve issues and the sense of control that comes from this.
What Will Happen?
Half the battle is won once the other side agrees to participate in mediation. If both parties have already agreed to mediate you can contact me to begin the process and move to step 2. If you are unable to approach or speak with the other party I can approach them with the offer of mediation on your behalf. Please be aware, while mediation is very successful, it is most successful when both parties can approach the mediation process together.
I will contact both parties to establish whether face to face, online or telephone conversations are the best approach. For face to face meetings and where geography allows, parties can meet at my home office in Larbert, otherwise I will identify an accessible, neutral meeting place. An agreed date and time will then be set for our first meeting.
For the first meeting (Mediation Information and Assessment Meeting) I will speak with both parties separately. At this point the ‘Agreement to Mediate’ document which outlines the ground rules of mediation will be discussed. A ‘Confidentially Agreement’ document will also be signed. We will then talk through the issues that each considers important. I may at this point draft a brief written statement summarising the key points for discussion or write a list of bullet points to exchange with the other party prior to the mediation.
The day of the mediation I will explain my role and check that both parties have authority to settle the dispute. I will then ask for open statements from each party.
Conversations will follow from the opening statement. I will use my facilitation experience to maintain a positive environment and ensure that momentum is maintained throughout the sessions. I will identify, probe and explore solutions with each party.
Occasionally private sessions (known as a caucus) will happen which will allow time for one party to continue thinking about and work towards a solution whilst I meet with the other party. This maintains focus and saves time. The face to face meeting will generally aim to conclude within 1-2hrs but may vary depending on the nature of the dispute and number of participants.
Once an agreement has been reached that is acceptable to both parties a settlement will be drafted. When mediations take place over the phone or online, a verbal agreement can be voice recorded and provided to both parties in the first instance. A mediation settlement is a contract, and so the effect of breaking it is the same as the effect of breaking any other
contract. Should one of the parties break the terms of that contract, the dispute can be taken back to further mediation. Or the disadvantaged participant may consider entering the court process and sue – not on the original contract, but rather on the contract formed in the settlement process. Having said that, it is very rare for one of the parties to the settlement not to live up to or carry out what was agreed in the mediation settlement.
A month on from the settlement I will contact the parties to check how things are going and ask for feedback.
How Much Does It Cost?
Less than lodging a claim at court!
Many Dispute Resolvers and Mediation providers scale their fees in accordance with the monetary value of a claim. I consider this to be disconcerting for those considering mediation where there is no monetary claim, the monetary claim is low but of high significance, or where mediation is being considered as a form of early intervention (before things get out of hand) As such my fees ensure Mediation is an accessible and affordable option.
- The initial consultation is free.
- The Mediation Information and Assessment Meeting (Step 3) is £30 per party.
- The Mediation session is usually around £150 (£75 per party) but may increase slightly depending on the complexity of the dispute. Travel costs may be added for extended journeys.
*Statistical reports available on Mediate.com