Mediation
A Beginners Guide to Mediation
INTRODUCTION
There’s a problem to be resolved between you and someone else, whether a person or a company. You may have already been to lawyers or other advisers and it looks as if it will take time and there are no absolute guarantees of the outcome.
IN MEDIATION YOU DECIDE.
WHY MEDIATE
A Mediator doesn’t usually make a decision, give legal advice to either party or do anything contrary to the wishes of the parties. The mediator helps in ASSISTED NEGOTIATIONS towards a successful resolution of problems.
You will usually be asked to focus on NEEDS which are different to desires, day-dreaming of golden eggs or that lottery win. This is not the golden goose or the winning ticket but an opportunity to look objectively at a difficult situation and gain perspective. What is really necessary for you to be able to move on? What will the true costs be in time and energy. Generally only 70-80% of costs are recoverable and the time will be lost forever.
PROVE A POINT it’s a matter of principle! I don’t lie! You can say what you like in a mediation directly to the other party at the opening session and thereafter through the mediator’s filter.
CONFIDENTIALITY of what is discussed is crucial and a mediator doesn’t willingly break this rule to allow frank and open discussion . The Agreement states he will not be a witness if no agreement is reached and matters subsequently go to court. So when in CAUCUS(meeting one or other party alone) what is discussed will not be disclosed to the other party without consent.
ENFORCEMENT of any agreement works in the same way as a contract or a court judgement. It should cover the subject of the dispute and the question of costs and be signed by all parties.
IT IS YOUR SHOW
Seeking to resolve matters through mediation is a growing alternative to proceeding on a course that becomes out of your direct control with lawyers and other professionals issuing documents, following the procedures and timetables of a court or arbitration body. Lawyers can come with you and take part but the emphasis is not on the rights and wrongs but how to move forward.
It’s expensive, it takes time and takes you away from whatever you should have been doing. With mediation YOU KEEP CONTROL
DECISION MAKERS are encouraged to be present or at least on the end of a phone during a mediation. There is nothing more frustrating than having an agreement where approval is necessary and the person that needs to approve it is not available. We prefer to get things agreed and signed at the time otherwise unforeseen events can derail the process.
What can be mediated, according to the courts, almost anything. If a point of law is involved for a class claim mediation may not be the ultimate solution. It can however assist in agreeing common ground to limit the issues in any matter.
HOW
CHOOSE A MEDIATOR to organise the proceedings and arrange to contact the other parties. You will usually be asked for a summary of the matter and if time permits will be encouraged to provide two, one which is open to the other side and the second confidential to the Mediator
FINDING A VENUE needn’t be a bore. A mediation can happen anywhere with three rooms (two at a pinch if the mediator is happy not having his own room). In London I have attended mediations in court buildings, solicitors offices, ADR centres and hotels. It’s important to be comfortable and have refreshments available.
In the Midlands, I have used Hilton Hall, a stately Home formerly occupied by Tarmac where recent management changes have led them to be extremely helpful.
BRING SOMETHING TO DO when the mediator is in with the other party it’s a good excuse and opportunity to do something where you will not be interrupted constantly by the phone.
BRING A FRIEND if you are nervous of coming alone or feel daunted by what might take place. They can come in to the main session with the consent of the other parties or remain in the room set aside for your use.
HOPEFULLY YOU WILL HAVE AN ENJOYABLE EXPERIENCE and a
SUCCESSFUL RESULT
A WIN/WIN SITUATION