WHY MEDIATE ?
It is an effective means of alternate dispute resolution (ADR) for any dispute not requiring a judicial or third-party determination. By resolving disputes in mediation, parties determine for themselves what is important and, ultimately the outcome of the situation. Mediation works not only because it focuses on the party’s own interests and agendas, but also because it provides the opportunity for parties to move beyond disputes efficiently and chart their own future. The following five areas are some of the benefits typically associated with mediation:
- DOWNSIDE: There is seldom any serious downside to mediation.
- SPEED: In resolving or narrowing disputes through mediation, parties avoid the delay of a judicially decided outcome.
- ECONOMICAL: In resolving or narrowing areas of disputes through mediation parties save an enormous amount of expense associated with conventional litigation.
- CONFIDENTIALITY: While lawsuits are matters of public record, what transpires at a mediation can be kept confidential by agreement.
- SETTLEMENT: Studies indicate parties entering into voluntary agreements through mediation are far more likely to fulfill commitments made in such agreements than they are with judicially imposed resolutions.
DIFFERENCE BETWEEN MEDIATION AND ARBITRATION
Although mediation and arbitration have the same goal in mind, a fair resolution of the issues at hand, there are some major differences which both parties must understand beforehand.
The main difference between arbitration and mediation is that in arbitration the arbitrator hears and reviews the evidence presented and makes a decision. Arbitration is like the process at a trial but it is usually less formal as parties provide testimony and submit evidence. An arbitrator could be a retired judge, a senior lawyer or a professional such as a paralegal, accountant or engineer. During arbitration, both parties are given an opportunity to present their cases to the arbitrator. Much like a regular court proceeding, lawyers can also question witnesses from both sides. During arbitration, there are usually little if any out-of-court negotiations between parties. The arbitrator has the power to render a legally binding decision which both parties must honor and the award is enforceable in civil court.
Mediation is a negotiation process with the assistance of a neutral third party, the mediator. There isn’t really a losing party as both parties agree beforehand to the resolution. Mediators do not issue orders or make determinations. Instead, mediators help parties to reach a settlement by assisting with communications, obtaining relevant information, and developing options. Although mediation procedures may vary, the parties usually first meet together with the mediator informally to explain their views of the dispute. Often the mediator will then meet with each party separately. The mediator discusses the dispute with them, and explores with each party possible ways to resolve it. It is common for the mediator to go back and forth between sides a number of times. The main focus remains on the parties as they work towards a mutually beneficial solution. Most disputes are successfully resolved and often the parties will then enter into a written settlement agreement. Many people report a higher degree of satisfaction with mediation than with arbitration or other court processes because they can control the result and be part of the resolution.