Have you ever been involved in a commercial dispute? If
so, did you consider mediation to resolve the situation rather than
What is mediation?
The word 'mediation' comes from the Latin verb mediare,
meaning to halve, divide in the middle, or be in the middle. The
role of a mediator is thus to be in the middle – to act as
the neutral person between two or more disputing parties to help
them resolve their differences.
What is litigation?
Litigation, on the other hand, comes from the Latin verb litigare,
meaning to quarrel or to go to law. Litigation typically involves
warring parties going to Court and while a judge may be a neutral
person he/she has to decide in favour of only one party.
The difference in meaning between the two words says a lot about
the difference between mediation and litigation as mechanisms to
A mediator's job
According to the LEADR model of mediation in New Zealand it is a
mediator's job to facilitate resolution by their parties of
their dispute. This involves the mediator helping the parties:
Identify the issues that have brought them to the mediation
table (which may be quite different for each of them);
Explore the issues each has identified, including identifying
and exploring the parties' emotional and practical interests
and identifying the existence of any common ground;
Reflect on their own positions and interests and their
understanding and appreciation of those of the other party or
Actively engage in open brain-storming to find possible
Identify the most workable and acceptable solutions; and
Translate what has been agreed into an agreement or plan for
Perhaps the distinguishing feature of the LEADR model above is
that throughout the mediation it is the parties who control the
outcome – what they put in is reflected in what they get out
of it. Thus if the parties come to the table with a negative
attitude towards the process they are very unlikely to get anything
out of it. In fact, the mediation will probably not last much
beyond the initial introductions.
Benefits of mediation
The principal benefits of mediation over litigation are:
The parties determine the outcome of their dispute, not a third
party such as an arbitrator or judge
The parties do not have to decide who's right and who's
wrong – the outcome is a solution which both parties can live
with irrespective of who's right or wrong
Mediation can be a speedy resolution process, depending on the
complexity of the issues and the number of parties involved, unlike
litigation which is typically drawn out over many months if not
Mediation is a confidential process; litigation is usually a
Mediation is an informal, flexible and accommodating process,
not governed by strict procedural rules as in Court proceedings.
The LEADR model of mediation, for example, has an 'ideal'
process structure but this can be varied according to the needs of
the specific mediation with the parties' consent
Mediation can preserve relationships when litigation may well
destroy them. Preservation of commercial relationships can be
incredibly important, of course, especially in a country like New
Zealand where alternative providers goods and services are often
Of course, mediation is not always the appropriate mechanism to
resolve a dispute. In many instances the parties are so far apart
in their desired outcomes or simply cannot co-operate with each
other that the only suitable process is one where a third party,
such as an arbitrator or judge, decides the outcome for them.
If your dispute is one which involves an
intellectual1 property issue, however, I invite you to
contact me. I am an accredited LEADR mediator as well as an
Associate Member of AMINZ and am more than happy to assist.
1Refers to the ownership of an intangible
thing - the innovative idea behind a new technology, product,
process, design or plant variety, and other intangibles such as
trade secrets, goodwill and reputation, and trade marks. Although
intangible, the law recognises intellectual property as a form of
property which can be sold, licensed, damaged or
trespassed upon. Intellectual property encompasses
patents, designs, trade marks and copyright.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
James & Wells Intellectual Property, three time winner
of the New Zealand Intellectual Property Laws Award and first IP
firm in the world to achieve CEMARS® certification.
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