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Mediation is a form of alternative dispute resolution ("ADR"),
between companies or individuals, where a neutral third party
mediator is appointed by agreement to seek to resolve a dispute
in a quick and cost-effective way.
The Mediator acts as a facilitator or "referee".
His role is to find a basis for settlement if it is achievable.
Normally, the Mediator will not give an open opinion on the
strengths and weaknesses of the parties' respective positions.
However, you should expect the Mediator to test your case
in private, expose weaknesses and to press you to consider
alternative avenues for settlement that you might not have
considered. He will be doing exactly the same to your opponent.
The process itself is very flexible. Normally, the Mediator
will start by asking both parties to state their positions
openly and then split each party off into separate (private)
rooms and conduct "shuttle diplomacy" between them.
Often, the Mediator will suggest the parties meet again to
re-state their positions (which may have changed) or ask questions.
The Mediator may also suggest face to face meetings (without
lawyers).
There is a continuing growth in the number of cases referred
to mediation, both by the parties themselves, and also by
the Court, which has the power to stay proceedings whilst
the parties mediate.
The distinctive features of mediation are:
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The parties can agree the terms and procedures
to be employed. |
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It is usually cheaper than other methods
of dispute resolution because costs can be managed more
easily (on a "per day" basis). |
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The procedure is informal and takes a fixed
amount of time, therefore causing minimum disruption to
the parties' business. |
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A mediator can often provide a new dimension
to the negotiation process by taking a broader perspective
and bringing fresh ideas to the parties. |
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It is confidential and without prejudice. |
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Commercial relationships are more readily
preserved. |
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Either party can withdraw from the Mediation
at any time.
It can be used together with the other dispute resolution
processes, including litigation. |
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Settlements which contain commercial issues
outside the dispute may be achieved. |
If little progress has been made in resolving a dispute by
other methods, trust and confidence between parties may be
low. However, this process encourages the parties to face
up to each other, with the ultimate aim of achieving a settlement
which is palatable to both sides, without incurring substantial
further costs and expending valuable management time. The
use of private meetings between the parties, their lawyers,
and the mediator provides a confidential and focused environment
in order that settlement options may be explored.
Whilst an arbitrator imposes a binding decision, a mediator
seeks to help parties achieve their own binding agreement
on a mutually acceptable basis. If settlement is not reached,
the parties can still explore other dispute resolution methods
(i.e. arbitration or litigation).
Charles Russell is a founder member of the Centre
for Dispute Resolution ("CEDR"). This organisation,
based in London, is one of the leading administrators of mediations
in the UK. Our commercial dispute resolution team has vast
experience of mediations of all types, and will be happy to
advise you on whether this type of ADR is suitable for your
dispute
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