Mediation in the spotlight – Day 2 – A Non-binding process

Dispute Resolution - 2 minutes read

Its Day 2 of my blog as part of Mediation Awareness Week, and I’m going to look at another aspect of Mediation that makes it such a good alternative to litigation; it is Non-Binding. 

Only when final agreement is reached, usually recorded in a formal document or a consent order (if there is a live claim), does it become binding and enforceable. 

One of the hurdles to settlement in the course of the litigation process, which is often advanced by letters and statements rather than face-to-face meetings, is that offers are often reduced to a simple number, or sometimes one or two simple alternatives. 

Mediation means you take part in a conversation. In fact, multiple conversations, where multiple and varied ideas are created, pushed back and forth, tried and tested. 

Firstly, you get to talk through the problem with the Mediator. They will listen, seeking to understand where you are coming from, so that they can best facilitate settlement discussion.  Secondly, they may ask you questions, to deepen their understanding, but a good mediator may also play Devil’s advocate and will test your ideas. This is not to argue for the sake of it, but is usually a chance to allow you to see a counter argument, or whether something is realistic. This independent voice is invaluable.  

You also have plenty of opportunity to talk with your advisers, colleagues, partners, family or friends who attend with you. 

Lastly, if you and the other party agree to it, there can be scope for talking to each other. But there is no pressure, or obligation to speak. Sometimes it can be effective for the lawyers to get together and speak. 

The point is, a vast amount of talking gets done, all of which can serve to take the matter forward. The outcome is usually much better than the endless letter-writing that can characterise much litigation. 

It is the Non-Binding nature of mediation which enables this freedom of discussion of possible solutions. Later in the week I will cover the importance of the discussion at mediation being ‘without prejudice’. 

If its Non-Binding, what’s the point of mediating? The point is to get to a place where agreement is reached, in principle. Some mediations end with a signed document recording the agreement reached on the day. Others may be agreed subject to tax advice, or approval by a Court, which may be essential to become binding and effective. But this in no way reduces the power and benefit of mediating. The many ideas tried and tested in mediation bring the parties closer together, and it is not surprising that a good number of cases settle very shortly after mediation. 

Tomorrow, I’ll be blogging on the importance and huge advantage gained, by the Independence of the Mediator. 

Sometimes life just doesn't go to plan: things go wrong, expectations aren't met, and people fall out.