Have you ever been in a dispute with someone and felt that you’re not getting anywhere? Perhaps you’ve been going back and forth so long that you’ve forgotten the very purpose of the dispute. What usually breaks through such a deadlock is seeing the situation from a different perspective, and this is exactly what mediation seeks to do.
What is mediation?
Within the study of law at university, mediation is usually banded under the umbrella term ‘dispute resolution’ alongside arbitration and litigation. However, the mediation process provides some unique benefits that should not be overlooked.
At the beginning of the mediation process, the two parties to a dispute agree to a settlement process with a mediator. A mediator is an impartial third party to the dispute, who aims to facilitate discussions between the two disputing parties. This is done by asking questions about each party’s perspective on the matter, and by providing unbiased information where it is needed. The actions of a mediator can be so subtle that their presence is almost unnoticeable, but their inputs can be crucial to bypassing certain deadlocks. Essentially, mediation is just two parties negotiating with a mediator facilitating this.
Benefits of Mediation
One practical benefit of mediation is that it is more flexible than other dispute resolution processes. During mediation, offers can be made without influencing any court proceedings that happen later on. This means that parties to a mediation can truly commit to the process without fear of repercussions should the case go to court. Parties who commit in this way may therefore be more likely to settle their dispute early on, removing the need to go to court at all. If this is the case, and the parties are happy with the settlement, they can make it contractually binding.
A benefit which is particularly significant in personal contexts is the affordability of mediation. Mediation is often cheaper than litigation and, in some cases, legal aid can be used to cover some mediation expenses. Additionally, mediation typically takes less time than going to court. Lower fees and a quicker turnaround time mean that people won’t need to invest as much time or money in the process as they would if they were going to court. As such, mediation may be a better option for those on lower incomes.
One of the most unique benefits of mediation is its highly collaborative nature. In almost all dispute resolution processes, the parties involved are pitted against one another, looking to secure a good deal for themselves at the expense of the other party. In mediation, however, parties are encouraged to listen to one another’s perspectives and pursue a mutually beneficial deal. This opens up the possibility of a ‘win-win’ result. Such a result allows the parties to a mediation to maintain a good business relationship after the process, which is crucial in many business contexts.
Mediation in Personal Contexts
Perhaps the most relevant personal context in which mediation is used is family disputes. Family disputes cover extremely sensitive topics such as divorce and child arrangements. Therefore, if such a dispute becomes hostile, the parties involved are at risk of suffering severe emotional and mental distress. The ideal outcome in many of these situations, therefore, is a relatively amicable agreement between the parties. Because mediation pursues a collaborative ‘win-win’ approach, it may be a good way to pursue such an amicable agreement. In mediations such as these, a mediator’s role is crucial as they can help defuse heated arguments and re-focus the discussion.
Another factor to consider in the family law context is the role of mediation within litigation. It must be accepted that some disputes cannot be resolved through mediation. However, this does not mean that mediation holds no value in itself. In some situations, the family courts can treat a party less favourably if they have declined to attend mediation. In family matters, the courts may expect parties to be open and reasonable. By refusing to mediate, a party may show themselves to be ‘unreasonable’, therefore attracting unfavourable treatment from the court. This shows that, even if mediation itself doesn’t provide a resolution, it may still play a crucial role in achieving one.
Mediation is not without its limits, however. Exemptions are available where requiring the parties to attend mediation could raise concerns over personal safety. In situations such as these, mediation would be of little to no value to the parties and, more crucially, it may put one party at immediate risk of harm. This highlights the importance of context. Mediation is a useful tool, but it is not the best option for every situation.
Mediation in Commercial Contexts
Mediation is also a viable option for many business-to-business disputes. One benefit of using mediation as a business is that it can increase the likelihood of achieving a better outcome. This is due to the unique role of the mediator. During a mediation, either party can confide details about their situation to the mediator. These could include any pressing issues they are facing, or any specific aims they want to achieve by participating in the process. This gives the mediator a well-informed perspective on how the dispute could be resolved. Using this knowledge, the mediator can encourage parties to open communication on matters that they otherwise may have ignored. By doing this, the parties may identify new trade-offs which can form the basis of a more mutually beneficial settlement.
Mediation can also help protect a business’ reputation. If a business uses litigation as its primary means of resolving disputes, it may gain a reputation as being excessively litigious. This is problematic because it can damage the business’ ability to form new business relationships. If a business gains a reputation for suing its suppliers, it may become more difficult for that business to secure new supplier contracts and to maintain its existing supplier contracts. This causes many difficulties for the business going forward. Had it chosen to mediate, the same business may have reduced the number of disputes that it chose to pursue in the courts, while also showing itself to be open to compromise. This illustrates how a willingness to mediate can enhance a business’ reputation within the business world, preventing any damage to its contractual relationships.
Conclusion
Mediation is often overlooked as a means of resolving disputes, but it can bring a range of benefits in both personal and commercial spheres. Indeed, the mere presence of a mediator can sometimes prompt parties to a dispute to engage more openly with one another. As such, mediation is an important tool with which any legal practitioner or law student should be familiar and, by actively engaging with it, they can develop an even deeper appreciation of this unique process of dispute resolution.
Kommentare