When a civil dispute is brought before the Court to be resolved, the opposing parties will present their oppositions to the Court in a hearing. A Judge will decide the case on the evidence before him and by determining how the law is to apply. It can be a lengthy and expensive process to prepare and present a case for hearing and to have it determined by the Court. An alternative to resolving a dispute through the Court system is mediation. The judiciary is encouraging parties to use mediation. The benefits of mediation are well recognised.
Mediation is a voluntary process in which a trained and impartial third person, the mediator, helps the parties in dispute to reach an amicable settlement that is responsive to their needs and acceptable to all sides. The mediator brings the parties together face-to-face in a private and confidential settling. Each party will have the opportunity of putting forward his point of view and listening to what the other party has to say.
• Discuss and decide what matters are in dispute; • Explore each party’s real needs and interests; • Expand settlement options and assess the most suitable solution; • Draw up the settlement agreement in detail, setting out how the parties have agreed to resolve each matter in dispute.
• Parties may be invited to attend a preliminary meeting in which the mediator will assess whether mediation is suitable for the particular circumstances. • The parties may seek legal advice at any stage of the mediation. • Both parties have the right to terminate the mediation process at any time. • Both parties must appreciate that what the other party says in a mediation session is without prejudice and therefore cannot be used in any legal proceedings. • An agreement drawn up in a mediation session and signed by both parties is legally binding as a matter of contract. However, the agreement itself is not enforceable as a judgment, an order of Court, or an arbitration award, but an innocent party may sue upon it if the other party is in breach of terms.
• Parties may avoid the tension, conflict and risk in the adversarial court system. • Parties may save some time and money in not having to contest matters in court. • Mediation can start before any litigation or at any stage during the process of litigation. • Parties can make their own decision and reach agreements with which the parties may be more willing and ready to comply. • The settlement terms can be kept private and confidential. • Mediation can result in terms of settlement of greater flexibility and in more practical ways going beyond the legal remedies that the court is empowerted to grant. • Mediation can help maintain a continuing relationship with the other party or parties involved in the dispute and may improve that relationship. • The chances of an appeal are greatly reduced, in contras to the litigation.
There is no strict legal requirement of who can be mediator. Mediators usually come from various professional backgrounds and have undergone training in mediation skills and techniques so that they know how to conduct the mediation process in unlocking negotiations that have become deadlocked and in keeping everyone focussed on finding a solution. • Mediators do not provide legal advice. • Mediators do not take sides with either party. • Mediators do not take decisions for the parties, but help the parties to assess the feasibility of the decisions that parties make.
CNICA Mediation Center maintains their own list of mediators covering many areas and professional disciplines appropriate to the dispute in question. The parties can select from the lists and agree on a suitable mediator. Mediators may also be required to abide by an Ethical and Professional Code of Practice of CNICA Mediation Rules.
It depends on the complexity and number of issues that parties require to settle. The degree of the parties’ co-operation and readiness to participate in the mediation sessions also count. If issues are not complicated and the process goes smoothly, it may only take one mediation session of a day or less for the parties to reach agreement. All in all, mediation is generally a far more expeditious form of dispute resolution when compared to arbitration and litigation. This is of enormous benefit to all parties especially in relation to costs.
Mediators are required by their Ethical and Professional Code of Practice to observe confidentiality in respect of all matters disclosed in the mediation session. When the parties agree to take part in mediation, they will usually be required by the mediator to sign a Mediation Agreement that all negotiations undertaken pursuant to the mediation are to be privileged and conducted on a without prejudice basis.