As part of Mediation Awareness Week, each day I’m going to be blogging on what I see as 5 key aspects that makes Mediation a fantastic way to resolve disputes. These are that Mediation is 1. Voluntary 2. Non-Binding 3. Independent mediator 4. Confidential , and 5. Without Prejudice.
So, one of the key aspects that contributes to the success of mediation is that it is VOLUNTARY. To state the obvious, it only takes place if both sides agree. But why is this a good thing? Because it gives you as the interested party more control over the process and decision-making. Too often in disputes, the people at the very centre of them, and who have most to win or lose, do not have the level of control they should.
Why? Whilst lawyers are undoubtedly important for advising on the legal position and negotiating tactics, especially where there is an imbalance of power between the parties. But adopting a legal ‘position’ can hinder settlement negotiations, and parties lose decision-making power (and money), as they defer to the legal experts. In litigation, power ultimately rests with a judge who imposes their decision on the part of the dispute they have been asked to rule on – whilst other elements of the dispute may not be dealt with at all.
So, you can see that the power and decision-making goes from the interested party, to the lawyers, and ultimately to a judge. The result can be daunting, as you sit on the edge of the process, looking in. This is why Mediation is so attractive. You get to decide the date, shape, style of mediation that suits you. And ultimately, if you do reach a settlement, it is one that you and your opponent have volunteered to, each making sure that it works for them. That is very different from the uncertainty and strain of the litigation process, which can end up in a decision being imposed upon you.
The simple decision to mediate is a powerful thing. The moment you opt in, you send a signal: ‘I’m prepared to talk‘. Anyone who thinks this is a sign of weakness would do well to remember the words of Winston Churchill who said: “Courage is what it takes to stand up and speak. Courage is also what it takes to sit down and listen.” Mediating isn’t necessarily easy, and the outcome reached might not make you happy, it might be something you can just about live with. The point is, that outcome may be vastly better than the possible outcome of a trial.
Watch this space for more on Mediation this week !
Mediation is an increasingly popular way to settle disputes outside of the court process. It's being used to resolve difficulties across a wide variety of areas including business, employment and property disputes. Its success is now well documented and the Courts actively encourage people to try mediation before litigation.