What is Mediation?

Mediation is a form of alternative dispute resolution. Alternative dispute resolution is a method of resolving disputes outside of the court system. They are often used as a more time efficient, less expensive and more amicable way for resolving a dispute.  There are different types of alternative dispute resolution in addition to mediation. This includes:

• Arbitration
• Conciliation
• Negotiation
• Expert determination.

Many people choose to undertake mediation as it can be a confidential proceeding, unlike most Court cases. It also can be more flexible in its proceedings. Mediation can offer solutions that benefit both parties as it inherently provides disputing parties more control over the outcome.  It can also help preserve personal or business relationships by reducing adversarial conflict. Mediation often results in a quicker outcome, than if both parties resolved the dispute in the traditional Court system.

What does mediation involve?

Mediation usually involves an impartial third party, known as a mediator, to help both parties come to a mutual agreement. The mediator is not supposed to take sides, but is there to help promote understanding, facilitate communication and find a resolution. In most cases the mediation process is voluntarily agreed upon between the parties. However, there can be times in which the Court orders mediation or requires mediation to be attempted before the Court will hear the case. The Court may also order mediation if the disputing parties cannot agree to mediation. Any discussions or agreements made in mediation generally cannot be used as evidence in Court, if the dispute doesn’t settle and results in legal proceedings.  

Mediation can be used for a variety of disputes, including conflicts in the community, workplace, commercial settings, neighbourhood disputes, disputes of deceased estates and family disputes over custody or divorce settlements.

What are the types of mediation?

There are three primary types of mediation:

1.Informal mediation: This is a more flexible and less structured process. It usually involves both parties voluntarily agreeing to mediate and select a mediator. The mediator does not necessarily need to be a professional mediator. It is often used in workplace conflicts, community disputes or family conflict. Sometimes informal mediation can be done without a mediator, but this is usually referred to as an informal settlement conference.

2. Court-annexed mediation: This mediation is ordered or facilitated by a Court. The Court may appoint a mediator or sometimes give a list of mediators for the disputing parties to choose from. Usually, the mediator will be an employee of the Court and is required to be impartial. This form of mediation is usually more structured and follows some of the procedural rules set by the Court. It is often used when the Court determines that mediation may help to resolve the dispute without a Court trial.

3. Private Mediation: This is initiated by the disputing parties, often through their legal representation. Usually, a professional mediator is hired. This is usually a person who is an expert in the field related to the matter. This type of mediation is often used in commercial disputes and complex family law matters. It can also be used when the parties prefer confidentiality and control over the process.

With all forms of mediation, it is important to remember that the parties are partaking with the hope of settling the dispute. There is no judgment determined by the mediator as they are only there to help the parties negotiate and narrow issues. Ultimately a resolution can only be reached by agreement between the parties if they are willing to settle the dispute. Usually this involves some form of compromise by both parties in the interest of ending the dispute.

If you have a dispute that requires mediation, contact us for a free thirty-minute consultation with a disputes lawyer.

Photo by fauxels:

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.