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Mediation is an effective option for resolving disputes

by | Aug 3, 2022

To resolve a dispute, the parties involved may reach an impasse and turn to the legal system for help. Accordingly, many people believe the only option to resolving a dispute is to initiate a lawsuit. However, there are other avenues, which lawyers have a professional obligation to offer clients, that may lead to an acceptable outcome.

Mediation is one such option which is suitable for various cases including:

  • personal injury matters;
  • small business disputes;
  • breaches of contract;
  • family law issues; and
  • property disputes.

Mediation has proven to be a successful process for resolving disputes. For this reason, the court system has the power to order parties into mediation prior to going to court, if they have not done so voluntarily.

A less formal process than court proceedings, mediation is conducted by a neutral third person, known as a mediator. The mediator is usually someone trained and accredited by the Court and ideally possesses good conflict resolution and negotiation skills. Depending on the nature of the dispute a mediator may also be an expert in a particular field. Unlike a judge, a mediator won’t decide on the outcome of the case. Instead, mediation is designed to empower the disputants through a process of discussion, negotiation, and mutual agreement – with the aim of avoiding the cost, time, stress, and risks associated with formal litigation.

Mediation is a multi-stage process with most proceeding as follows:

The mediator begins by providing a universal statement about the nature of the dispute. They will also explain the goals and rules of the mediation, and to get the most out of it, encourage all parties to conduct themselves in a civil, professional, and constructive manner.

Each side then takes it in turn to present their opening statement – delineating their version of the problem. The mediation itself is flexible and can be tailored to the circumstances. Mediators may assist proceedings by asking questions, encouraging open discussion, offering different perspectives, and expressing issues in alternative ways.

If not already done so, the mediator will require a concise detailing of the facts, evidence and any other relevant information that may help them formulate ideas and proposals that meet each party’s core interests. The mediator can lead the negotiation with all parties in the same room, or they can split them up and engage in “shuttle diplomacy,” moving back and forth between the parties. It is important for both parties to enter negotiations with a clear understanding of their settlement proposal – and be prepared to reach a mutually beneficial compromise, if necessary.

The length of time mediation takes to reach an agreement (in full or in part) depends on the complexity of the issue and the willingness of the disputants to work together for the common good. Straightforward cases can potentially resolve in half a day. More complicated cases will require at least a day – but possibly more.

The details of an agreement will usually be recorded and signed by all parties before the end of the mediation.

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