What is Mediation?
Mediation is a process in which a neutral third party (the mediator) facilitates open and constructive discussion between the parties to a dispute. The mediator does not offer advice or act as a decision-maker. Instead, the mediator guides the parties to come up with their own solutions to the problem.
Quite often, parties to a contract (such as a partnership agreement, or shareholders agreement), will nominate mediation as a method to resolve disputes. Even if there is no written agreement, people who are in business together, or in any kind of dispute (including family disputes), can agree to nominate a mediator to assist them to resolve the dispute as an alternative to the court process.
Mediation allows a much wider range of outcomes than traditional court claims. In court only one party can “win” but, in mediation, the parties are encouraged to think creatively to come up with an outcome in which, potentially, both parties can win.
Once all parties have agreed to participate, the mediator will usually contact each party separately, or arrange a short joint conference, to discuss the background of the dispute (called a preliminary conference or pre-mediation). This serves two main purposes: first, to assess whether the dispute is suitable for mediation, and second, to discuss how the mediation will be conducted, i.e., who will attend, availability, and what sort of facilities are required.
The process itself is flexible and will be adjusted to the particular circumstances. However, the Resolution Institute’s model (pictured left) is one example of the structure of the mediation process.
Each level of the diamond relates to a distinct phase of the process.
The mediator will guide the parties through the process and try to make sure that each phase is complete before moving on. It is important to keep in mind that mediation is not a race to the finish. Some disputes simmer away for many years before they finally boil over and, quite often, what one person says is the problem is actually only the tip of the iceberg.
The goal of mediation is to get to the bottom of the underlying problem, which can take time. In simple cases, mediation may go for three to four hours. But parties will be encouraged to set aside the entire day, just in case that extra time is needed. In a complex dispute, it might take several full days to complete the process.
Experience and Practice Areas
Our co-director Rob Lilley is accredited under the National Mediator Accreditation System (NMAS) and a Professional Member of the Resolution Institute.
In 2019, we launched Tough Talks Mediation to offer fixed price mediation services as a quicker and more affordable alternative to court proceedings.