Because it works. Plain and simple.
Mediation allows reason to rule where reactivity has reigned. It offers both parties the breathing room of objectivity.
The presence of a skilled neutral changes negotiating dynamics in a critical way. The mediator helps the parties to keep the negotiation focused and framed positively, and to consider their positions and interests more objectively and realistically. In most negotiations both parties can reasonably expect a faster and higher quality outcome from the engagement of a competent, suitable mediator.
Mediation provides a process, and the space to move toward understanding and acceptance of the truth as each party sees it, without wallowing in ‘blame’. Often, just to hear how conflict has impacted each personally; their loved ones and their business, the loss of peace of mind and enjoyment of life, points to a simpler way forward for both parties. In point of fact, there is a double win possible; a win for each party. Truth-telling in safe circumstances can lead to a recognition of each other’s humanity; allowing them to appreciate realities in a more immediate, empathetic way.
To hear and be heard has proven to be the most important aspect of the Alternative Dispute Resolution process for many. They report being better able to let go of the conflict. To move on and find mutually workable and acceptable solutions, and this often has ‘better than expected’ outcomes. In turn this leads to repairing previously beneficial relationships, restores peace of mind and, most importantly, reduces the probable fiscal impact of ongoing dispute.
How does it work?
The settlement of a dispute is basically just ‘a deal’.
Mediation is an assisted negotiation and essentially you are your own negotiator. Although mediation has traditionally been used for resolving disputes because it is particularly helpful in managing hostilities, mediation has far wider values in enabling negotiators to do their job on a collaborative, rather than confrontational or positional, basis. Sometimes the best outcome is the simple, open and frank discussion of the matters creating the dispute and the identification of each party’s needs and interests. Then after some consideration parties may meet again to establish an agreement. This maybe with their respective lawyers or with the mediator and their lawyers.
It is important to note that the High Court and District Court ‘Rules for Lawyers’ require that they advise their clients of the alternatives to litigation, to enable the client to make an informed decision regarding the resolution of their dispute. If you are accompanied by counsel, ensure your counsel comes to the mediation as a collaborative solution provider first, as your adviser second, and as your advocate third. Be quite aware that this may not be how your lawyer sees it.
Mediators have a tool kit of techniques at their disposal.
For example, ‘Interest-based’ negotiation happens when the parties focus on their needs and interests, more than on their respective positions. Thereby enabling them to achieve more creative options for mutual gain. It is a more collaborative, and less combative, experience aimed at maximising value from the negotiating table.
One of the most important fundamental principles underpinning good mediation is Confidentiality. It promotes free and frank discussion between the parties safe in the knowledge that views expressed in mediation cannot be used against them should the dispute not resolve by mediation. i.e. Anything that occurs during mediation is confidential, and cannot be referred to in any subsequent review or Court proceedings.
Benefits of ADR
Success and satisfaction rates very high. (IMI reports 80% chance of success, the reason for this is that when parties are in a situation where they all feel empowered to negotiate effectively, and achieve their needs, they generally succeed in doing so. Mediation provides that empowerment.)
Judiciaries embrace ADR as a time and cost effective process.
Court schemes to engage ADR increasing.
Puts the parties involved in control. A process of true equality; equal power, equal time, equal treatment, equal support, equal opportunity.
Mediator treats all parties equally, with fairness, respect and equality.
Flexible and informal.
Saves time and money.
It is confidential. Only the agreement, if reached, is enforceable in Court.
Helps parties deal with emotion. These are often more vital to resolve than the original matter of the dispute
Maximises possibilities of agreement.
Prevents escalation out of control.
Contracts usually require mediation prior to litigation. Contractual clauses that include a mediation step enable both sides to avoid any perceived weakness that may be implicit in a proposal to mediate, and represent good preventative lawyering/contracting.
The earlier, the better. If there is a dispute, tensions tend to escalate over time, making settlement harder to achieve the longer negotiation is delayed. Agreements can become harder to facilitate when parties become entrenched in their positions.