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Effectiveness of Mediation.

Posted on 24/04/2016 · Posted in Mediation

Mediation is a form of dispute resolution that is actively encouraged by the courts as a way of settling disputes rather than going through formal court proceedings. Not only that, but mediation is also often preferred by clients due to the fact that it is a much more efficient form of dispute resolution. Mediation saves resources and time for all parties involved as well as the judicial system. It is no wonder then, that it has become an ever more valuable dispute resolution tool.

Mediation is becoming increasingly popular as people begin to observe the benefits of settling outside of court. A 2009 study into Mediation in Victoria, Australia noted that 80 per cent of clients felt satisfied with the mediation process and happy with the outcome of their proceedings. This could very well be attributed to the fact that participants of mediation often note that they feel more empowered and in control of the outcome than in court. Even when the mediation does not end in a clear settlement, few participants would disagree that the mediation process leaves them with a better understanding of the dispute as a whole and the other party’s perspective, leading to more long-term gains and the re-establishment of healthy channels of communication between both parties. This is essential, particularly in corporate disputes in which parties wish to continue doing business with one another.

Not only business, but civil disputes, such as custody agreements also demand that parents restore harmony within their relationship for the benefit of their child. Mediation, unlike litigation does not award a winner or loser. This non-competitive approach can be beneficial for those who wish to stay in contact post resolution.

If indeed parties simply cannot come to an agreement and the mediation process is unsuccessful, parties are still free to pursue arbitration or litigation routes thereafter.

My people and I have come to an agreement which satisfied us both. They are to say what they please, and I am to do what I please”
Frederick the Great

How can the effectiveness of the process be safeguarded?

The mediator

The quality and experience of the mediator has a huge influence on the effectiveness of the mediation process and outcome. A positive outcome does not just depend on the willingness of both parties to come to an agreement, but rather the ability of the mediator to facilitate, remain neutral, and to build rapport with both parties.

The mediator’s role is absolutely key in building trust and ensuring clear expectations are set right at the start of the mediation journey. Expectations regarding firstly his or her role and secondly, the process ahead, so that participants have time to prepare themselves.

A successful mediator will facilitate effectively by showing empathy and impartiality and an aptitude to tease out the key points by asking the right questions, listening attentively and being able to understand the issues from each perspective. A successful mediator will not only listen and understand, but also be able to show initiative by stepping in where needed, and have experience of where and how to influence discussions. Key attributes that mediators should possess are patience, professionalism and self-reflectiveness. If mediators are always aware of where their own biases lie they will be much more likely to practice fairly.

The combination of an experienced, successful mediator and a willingness from disputing parties to enter into a mediation process can be a powerful one, and is proving time and time again to be an efficient and highly effective approach to dispute resolution in both civil and commercial matters.

Early implementation

In the aforementioned Australian study, researchers also noted that early implementation was key to successful dispute resolution. Early referral was positively correlated with positive outcomes via mediation. It can be difficult to request mediation if one is unfamiliar with the process but that is why many companies are now adopting in-house mediation services, so that employees feel confident and accustomed to using mediation to resolve professional disputes.

In-house mediation

It is recommended that companies in a wide variety of fields should implement mediation schemes in conjunction with HR professionals and trade unions if they are to prove most effective, research undertaken by the University of Plymouth showed. Recruiting influential managers, HR and employee representatives to carry out mediations can create a high-trust environment and encourages more informal resolution generally. It is also likely to result in a positive agreement, which in turn can reduce the costs of long-term absence, staff turnover or even litigation.

A written agreement

A clearly written agreement is the aim of mediation. Clients should ensure that the document carefully describes the intent and agreement between the parties and is signed by both parties and their counsel. The time frame for all payments should be clearly outlined. This ensures that any elements of the settlement not stated in the written agreement will be unenforceable. One person should write the mediation agreement with input from both parties. This reduces the margin for error if too many hands create one document.

Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

Articles of note:

Link: Mediation: Research into Effectiveness and Satisfaction, Hollier and Hart, Supreme and County Courts of Victoria, Australia (2005)

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.