Mediation is a powerful tool for tackling private disputes of
all kinds, particularly where privacy is preferred and the parties
need a viable continuing relationship. Mediation is a proven
process that allows people and organizations in dispute to resolve
their conflict themselves, making for better outcomes, saving time
and money, and avoiding the risk and cost of litigation.
Mediation really is a unique method of alternative dispute
resolution because it allows the parties in a dispute the
opportunity to reach a mutually acceptable agreement themselves,
with the assistance of a trained mediator.
Mediation is also highly effective: It has been estimated that
more than 80% of disputes that find their way to mediation are
Who is the Mediator?
The mediator is a neutral third party with no prior connection
to the dispute. The mediator is not an advocate for either side,
and is not a judge or arbitrator. No outcome is imposed on anyone.
Instead, the mediator relies on specialized training to help the
parties get their interests on the table and then negotiate
solutions to meet those interests.
Win/Lose: The Courts and Arbitration
Traditional dispute resolution mechanisms (the courts or
arbitration) tend to focus on "win/lose" solutions. The
conflict is resolved by a neutral third party (the adjudicator,
judge or arbitrator) who hears the evidence and the positions of
both parties, and makes a decision. On any given issue, this
decision will accept in whole or in part the position of one party
to the dispute; and by necessary implication, reject all or part of
another party's position. Subject to any appeal rights, the
decision is binding on the parties.
Only 5% of court cases end with a judge's decision. The
other 95% are settled. Settling often takes the form of compromise,
with each party giving in or giving up to achieve some closure. The
advantage of compromise is that the parties now have certainty
about the dispute's outcome. However, compromising can leave
everyone feeling entirely unsatisfied, especially in light of the
energy, time and legal expenses they incurred to achieve it.
Moreover, in some cases, compromise on the existing dispute may not
resolve underlying conditions that could flare up down the road in
the form of a fresh dispute among the same parties.
Win/Win: Mediation as the Alternative to Court
Mediation is not adversarial, although it depends on frank, open
dialogue within a structured process managed by the mediator. It is
also not group therapy or counselling, although key relationships
are often repaired, and even improved, through the mediation
process. Mediation is a negotiation-based dispute resolution tool
that focuses on identifying the interests and needs that lie behind
the parties' positions. Once everyone's interests are
actually on the table, the process facilitates "win/win"
(or at least "satisfied/satisfied") outcomes that are
built to actually address those interests.
Mediation is private and confidential, and participation at
every stage is completely voluntary. The mediator makes no
decisions and does not impose positions or legal rulings on anyone.
Instead, through a six-step mediation process, the mediator helps
the parties design their own outcome to meet their mutual
Benefits of Mediation
Mediation is particularly effective where privacy is preferred
and the parties need a viable continuing relationship. Mediated
disputes do not get picked up by the media.
Mediation is cheaper and faster than most litigation or
arbitration. The six-step mediation process is not weighed down by
the technical legal rules that accompany litigation and
While lawyers can be present, mediations often take place
without involving lawyers at all.
The parties control 100% of the outcome. Participation at every
stage is absolutely voluntary. Agreements negotiated in mediations
are generally better suited to the parties and are therefore much
more likely to be honoured by the parties.
At least 80% of the cases that find their way to mediation are
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.
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