What is Mediation?
Mediation is a process whereby a fair, impartial and independent professional mediator facilitates parties to a dispute in resolving their differences. It is sometimes referred to as Alternative Dispute Resolution (ADR), in reference to providing an alternative to litigation or judicial resolution of disputes. Mediation offers parties a less expensive alternative to court, featuring expediency and greater personal control of the outcome.
The Role of the Mediator
The role of the Mediator is to help the parties, with the benefit of their legal, financial and/or other counsel, to reach a mutually acceptable agreement. A professional mediator’s role is non-judgmental and non-directive. The mediator, unlike a judge, has no authority to bind the parties to any settlement. Rather, mediated settlements, facilitated by mediators, are binding because the parties choose them to be. Parties to a mediated agreement elect to mutually bind themselves to the written agreement they consent to as an alternative to judicial or binding arbitration adjudication. In many jurisdictions, such as the European Union, their is specific legislation, adopted by each EU country, that authorises mediation to be binding in law.
In short, professional mediators help parties take responsibility for the outcome of their decisions and conduct by facilitating an agreement that is acceptable to the parties to a dispute. This is accomplished by the mediator using their education, experience and skills in assisting the parties to identify the underlying issues to their dispute and exploring how such issues can be remedied so that the interests of all parties to the dispute can be met and therefore resolve the dispute.
Mediation is voluntary. Any party to mediation can choose to end the process at any time – however – professional mediators usually encourage all parties to a dispute to review the financial, emotional and other costs to resolving their dispute outside of mediation to ensure that every opportunity is pursued to resolve their disputes in a non-adversarial way, if at all possible. Munster Mediation encourages parties to consider their BATNA (Best Alternative to a Negotiated Agreement) to determine if negotiating a settlement is more beneficial and provides greater certainty that litigation.
Mediation is conducted in a confidential and safe environment. Parties are encouraged to air their complaints, make clear their concerns and propose solutions that might help resolve the conflict.
If the parties to a dispute come to a voluntary agreement as to how they can resolve their dispute through clear terms and conditions it is customary that the mediator assist the parties to reduce their agreement to writing. When this is done, parties are free to take legal and financial advice before signing the agreement and thereby bind themselves to it. Such agreements are essentially contracts in law as they meet all of the essential elements of a contract (an offer; acceptance in strict compliance with the terms of the offer; they have a legal purpose/objective; there is mutuality of acceptance “otherwise known as a meeting of the minds”; consideration is made and competency of the parties is clear). The agreement becomes binding upon being signed by both parties and therefore enforceable in law. While there are times when a non-binding arrangements might be preferable, generally speaking, mediation seeks to resolve disputes in a binding manner to help ensure the matter is “well settled”.
About the Mediation Process
The mediation process generally consists of a pre-mediation enquiry (usually by telephone or Zoom) so that both parties are aware of the process and can ask any process-related questions. Should the parties agree to continue, joint-sessions follow where the details of the dispute can be discuss, options considered and decisions made.
As no two disputes are exactly alike, the mediation process can last from a single session up-to multiple sessions over a period of time, depending on the complexity of the dispute, the number of parties to the conflict and the willingness and preparedness of the parties to reach a mediated agreement. Generally speaking, expediency is beneficial to the parties as disputes tend to become inflamed over time if not settled and new conflicts enter the relationship further complicating matters and often un-doing progress made.
Mediation sessions should be conducted with all parties present. One-to-one sessions rarely work as the mediator become a messenger between the parties and therefore loses their impartiality as communication is often imbued with tone, body language and other factors that often change the meaning of words in their usual context. If the parties are to be represented during the mediation, the mediator will meet those parties who will attend in a support capacity at this stage – union representatives, solicitors, financial advisors, supporters or others.
Getting Started – The First Steps
The first-step in mediation is to see if all of the parties are interested in voluntary mediation and determine if they have the authority to enter into an agreement that will resolve the dispute. Where all parties have agreed to engage and have pledged that they have the authority to enter into mediation, a written Mediation Process Agreement will be reached between the parties and the mediator. This Mediation Process Agreement sets out, amongst other things, that:
- mediation is always confidential;
- that it is a voluntary process;
- that any party or the mediator may leave the process at any time;
- that the parties to the dispute consent to pay the fees of the mediator as agreed (except where a third party is paying such as in a tribunal, etc.);
- all parties to mediation agree to proceed in a forthright, respectful and solution-oriented manner;
- that parties reserve the right to obtain legal and/or financial counsel prior to agreeing to any terms and conditions which may be binding;
- that if an agreement is reached, it will be reduced to writing and all parties to the dispute will sign it as a pledge of abiding by its terms and/or conditions.
Depending on the nature of the dispute, mediation session(s) may be conducted over a series of meetings or in a single session. The most time and cost effective means of mediation these days is to conduct the sessions by Zoom. Video conferencing cuts down on travel time, the cost of attending off-site meetings and allows parties to be in a physical space they are accustomed to and comfortable in thereby reducing the stress of mediation.
During these sessions, the mediator will assist the parties in staying focused, productive, respectful of one another and facilitates an exploration of the underlying issues to the conflict and possibilities for resolution. This is either done between the parties, or collaboratively with the parties and their counsel and/or advisors (often having solicitors and accountants or other advisors involved in complicated matters helps to reach a resolution that is not only acceptable to all, but which is more likely to be durable).
Responsibilities
It is the responsibility of the parties (and if present, their counsel and/or advisors) to outline the dispute and with the assistance of the mediator, to explore possible actions and steps that might resolve the conflict. This can be done in writing, as in the solicitors writing a Mediation Brief which outlines the issues in conflict and which enumerates the interests of their clients); or more routinely this is accomplished by the parties simply telling the mediator what they see as the issues in conflict and indicating what there goals and objectives are in finding a resolution to the dispute.
It is the responsibility of the mediator to facilitate the mediation in a professional, productive, safe and non-combative environment conducive to resolution. In doing so, the mediator seeks to improve communication between the parties, clearly identify the issue(s) in conflict (separating emotion from issues) and facilitate and exploration of steps to resolution that is in the interest of all parties involved. When this is accomplished, and agreement is reached (in our experience in over 90% all cases), a written agreement is developed which is signed by the parties and which becomes enforceable in law.
In those few instances where a full agreement is not reached, it may still be possible to come to a written agreement about parts of the dispute, which can generally resolve a great deal of the conflict but still allow parties to seek judicial determinations on the outstanding issues of the conflict. And, in cases where no agreement can be reached, parties simply leave mediation and are therefore free to seek remedies through mediation at a later date, through arbitration and/or tribunals (where appropriate) or through judicial determination.
About Mediation Agreements
In general, when a mutually acceptable resolution is reached between the parties, the mediator will help them draft a written agreement detailing the terms and conditions of the settlement they have reached and to which they have agreed. When all parties agree to its terms, the parties sign the written settlement agreement in the presence of a practicing lawyer/solicitor or a notary public.
Mediated Agreements are binding on the parties unless it is expressed not to be so. Parties need to tell the Mediator if what they have agreed that the mediated agreement is not to be binding on them and such a clause should specifically be inserted into the agreement before it is signed. However, since the goal of mediation is to resolve a dispute, it is not customary to reach a non-binding agreement. A legally binding mediation agreement is a contract and is enforceable in law. Therefore, parties to mediation should seek the advice of counsel before entering into mediation should they so desire and be accompanied by counsel during mediation.
