Mediation Explained

• Have you experienced a dispute which you need a resolution for without court proceedings?
• Is there a family matter that you would like to solve in a confidential way?
• Maybe the new area of mediation can be of assistance to you?

This definition incorporates the main hallmarks of mediation, which differentiate it from any other dispute resolution process. A mediator is an impartial facilitator who assists the parties in discussing and negotiating the issues in dispute with a view to them reaching an agreement which suits all parties and can, if required be made legally binding.

Confidentiality

The first hallmark of the mediation process is its confidentiality. All discussions, documentation, submission and statements made in mediation are and remain binding for the duration of, and after the process. Neither the mediator, nor anyone participating in the process, including any legal representatives,  can be compelled by a court to give evidence about the content of a mediation in court. The only exceptions to this rule of confidentiality are where disclosure is required to protect the safety, health or welfare or a person, in particular a child or children, where the process requires it, e.g. in case of financial disclosure in family mediation, or where it is required by legislation, e.g. The Multi Unit Developments Act, 2011's provisions on mediation.

Impartiality of the Mediator

The role of the mediator is to remain neutral at all times. A mediator cannot take sides, represent one party, or act as a judge or arbiter of an issue. This also means that a mediator cannot give legal or financial advice to a party, even if their professional background would give them adequate knowledge to do so. The parties must be referred to their own individual advisers for such purposes. In practice, a mediator may find him or herself having to address power imbalances within a mediation, which can make objective neutrality harder to achieve. A number of tools and skills can be used by the mediator to address situation such as this.

Voluntariness

The parties must come to the mediation process voluntarily, with a clear knowledge of the process and how it works. If they feel that mediation is not working ant any time, both they, and indeed the mediator can withdraw from the process. Indeed if the mediator feels that one party is not attending voluntarily, it would be his/her duty to terminate the process.
Legislators in many jurisdictions are struggling with how best to promote mediation, and encourage people to use it, while preserving  the requirement of voluntariness.  If a mediation is compelled by a court, for example, it is hard to see how a participant could be attending voluntarily. In some jurisdiction now compel parties to a dispute to attend a mediation information session, where the parties can then decide whether to engage in the process or not. This would be one method of addressing this dilemma.

Flexibility of the process

One of the most important attributes of mediation is flexibility of the process. Different types of disputes will require different mediation processes. Family mediation are usually conducted by means of mainly joint sessions with the parties, for example, while commercial mediation is usually conducted by means of single sessions (also known as "caucuses"). Some mediation, in the consumer context, for example, can be conducted online. Some mediation is completed in one day and their run over a period of weeks or months. Trial agreements can be tested, before becoming legally binding. Legal, financial or other advisers can be brought into the process if necessary. It is up to the mediator, in consultation with the parties, to decide how the process will work best for the each dispute.

Mediation is applied, usually, where a continuing relationship between the parties is essential, such as family disputes where a couple does not intend to separate. The role of the mediator is much more helpful in this form of mediation, and the mediator will have training in therapeutic techniques. The desired outcome of mediation is not limited to resolving any disputes but also on repairing relationships so that future disputes are prevented.

To discuss if this is suitable for your needs, please contact us

This website may be a further use to you:

• Sabine Walsh Mediation