CIVIL AND COMMERCIAL MEDIATION
Because the process of mediation is flexible and can accommodate a whole range of situations, the majority of disputes can be mediated. There are no written rules for determining when mediation will work and it is not always possible to know without trying. However, when making your decision on whether to mediate, it may help to consider a number of issues that will ensure more chance of success.
Ask yourself if there is a negotiable issue in dispute i.e. is there ground on which to move and will you and the other party be happy to voluntarily commit to a face-to-face meeting to try to agree to an agreed outcome or can you or the other party afford to simply ignore the problem? It’s good to remember it helps if each party needs something from the other. It is also helpful, but not necessary, for the parties to trust each other. Trust makes mediation easier. Of course both parties have to trust the mediator.
Disputes about issues such as: money, property, behaviour, rights and intellectual property are easier to mediate than disputes based on personal values, reputation or beliefs. Even so it is essential that one party is not able to dominate the other or dictate throughout the day and to have those with authority to settle present in the mediation.
The Mediation Process..
The parties agree to mediate and choose the mediator.
We will arrange the date and time select a neutral venue convenient to all. The venue will have 3 meeting rooms, one for each party and a separate space for joint face-to-face meetings. Catering will be arranged if required but it is preferable to have the option to take a lunch break offsite allowing for a stroll, some fresh air and a chance to think about the mediation progress.
We will make contact with each party separately and go through the issues that they consider important as well as discussing the ‘agreement to mediate’ document which outlines the ground rules so that everybody is clear on what to expect. He will then request a written statement/position paper summarising the key items around the case, this will allow him to be fully briefed prior to the mediation.
The day of the mediation. We will have a separate private meeting with each party. This will allow everybody to touch base and go through any issues that may have changed.
We will then convene the opening joint meeting. This may have been the first time people have met since the dispute. It reminds us that we are all human beings, something that can be lost in a litigation paper trail. We will run through the day’s proceedings including his role as the mediator. He will also allow people to outline their thoughts and get things off their chests to clear the air before identifying issues to be explored.
In a series of separate, private and confidential meetings throughout the day, we will identify, probe and explore solutions with each party. He will use his facilitation experience to maintain a positive environment to ensure that momentum is maintained at each round of discussions.
We will document the key issues at each stage of the negotiations allowing for one party to continue working towards a solution whilst he is meeting the other party. This maintains focus and saves time.
Once an agreement has been reached that is acceptable to both parties, We convenes a joint closing session where a commercial settlement is drafted together and signed by all making it binding. A record of the mediation document is also signed.
When not to mediate..
In some disputes mediation is not appropriate. These include cases in which:
• The case is genuinely thoughtless or opportunistic
• A party is acting in bad faith
• A party wants to delay the onset of litigation
• The safety of any the parties is at risk
• A legal precedent is required to govern similar cases in the future
• An issue of law, public policy or interpretation needs to be clarified on record
• Public access to or participation in the decision is desirable
• People who are not parties to the dispute might be influenced by the outcome
• The dispute is over a decision where a statutory decision maker had no discretion
• The validity of a parliamentary act or law is challenged