What is Mediation?
Mediation is fast becoming a preferred dispute resolution process. The other common processes used are arbitration and litigation. Mediation is a voluntary, confidential and without prejudice process in which a neutral third party, the mediator, helps disputants communicate and negotiate to reach a mutually agreeable settlement outside of court.
A mediator will:
Facilitate discussion
Assist with the identification of issues and underlying interests
Help parties to generate options for settlement and explore outcomes to resolve the conflict
Balance power dynamics
Manage the process, while parties control the outcome
Mediation is voluntary.
Parties choose to participate in the mediation process. In some instances, a court may order parties to consider and/or to engage in mediation, or to provide good reasons for not choosing to participate in mediation. However, parties cannot be coerced into a decision with which they disagree or which they do not understand and cannot be forced to settle.
Mediation is confidential.
A mediator will require parties to sign an Agreement to Mediate prior to starting mediation which explains that mediation is confidential. Mediation can only be successful if parties feel free to be open and honest in the mediation space, without fear of exposure by the mediator or the other party or parties.
The only time that confidentiality may be breached is if there in an indication of serious harm or abuse which by law a mediator must report to the relevant authorities.
Mediators are neutral, facilitators of negotiation and conversation
Mediators are neutral facilitators of negotiation and conversation. Not only is a mediator ethically bound to be a neutral third party, he or she must also be seen to be impartial. Thus even if a mediator engages privately with parties during a mediation process, neutrality and confidentiality is observed at all times.
No decision or final outcome is imposed on the parties without their consent.
All discussions during a mediation are non-binding until reduced to writing and signed by the parties. The settlement agreement may then be made an order of court, should the parties wish to do so.