Mediation

(non binding)

Mediation is the facilitation of a negotiated agreement by a neutral third party who has no decision-making power.

Mediation is now recognised as one of the quickest and most cost-effective ways of resolving a dispute and is the most common form of ADR.  The number of disputes mediated annually has increased rapidly in the past decade and evidence suggests that the numbers of mediations each year will continue to increase.

A mediator is an independent third party who is appointed by the parties to help them attempt to negotiate a solution.  He will not propose his own solution. The mediation process involves each party sending short written submissions to the mediator followed by a mediation hearing.  At the mediation hearing each party will begin by making a presentation to the mediator and normally the other side.  The mediator will then meet with each party individually in private in an attempt to facilitate a settlement.  The individual private meetings are often known as caucuses.  Caucusing may be followed by one or more joint sessions (plenary sessions).

The mediator's style can generally be described as either evaluative or facilitative.  Evaluative mediators are characterised as more prone to actively narrowing the topics for discussion, assessing their opinion of the law, the merits and what seems fair and working to narrow the "settlement range" in an attempt to cajole the parties to agree.  They seek to articulate and impose their view of the merits.  Facilitative mediators assist the parties to find a solution through the process, leaving the active evaluation and articulation of views on the merits in the hands of the parties.

Occasionally the mediator may be requested to give a non-binding view on their suggested terms of settlement or the merits of the case.  However, this is generally only given at the end of the mediation if there is deadlock.  In addition, all parties and the mediator must agree to the mediator giving a non-binding view.

For more information see our ADR practical guides focusing on mediation:

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