Mediation is a method of dispute resolution in which parties to an action attempt to reach an agreement with the assistance of a mediator.
Mediation is a flexible and informal form of dispute resolution which allows parties to a dispute to negotiate an early resolution of their legal action. Mediation offers parties a chance to gain greater understanding of their dispute and limit the cost (in both time and money) of extended legal action.
What is Interest-Based Mediation?
Interest-based mediation is a form of dispute resolution where parties to a lawsuit are encouraged to explore and define the issues and communicate their interests and motivations. Once there has been a thorough opportunity to understand all of the circumstances, parties to a lawsuit are assisted with the development of a range of creative solutions that meet the interests of the parties. Parties will then be invited to evaluate the most attractive options and ensure that solutions reached are workable and practical.
One of the goals of interest-based mediation is for the parties themselves to co-produce their own agreement that they all support. Mediators do not take sides, make decisions or suggest solutions. The parties create and agree to this on their own solutions. No solution or agreements are imposed by the mediator.
Who attends mediation?
Parties attend mediation, with or without their lawyers. Lawyers can play an important role in mediation by:
assisting to educate the parties,
developing negotiation strategies,
helping parties to speak persuasively, and
developing a range of creative solutions.
How long does mediation usually take?
Mediation usually takes about 4 to 8 hours, but this depends on;
the number of parties,
the number of issues to discuss, and
the complexity of the issues.
Participants should set aside a minimum of three hours for a mediation session.
How much does mediation cost?
Mediators set their own fees. Parties pay the mediator directly. This cost is not covered by the court. Most mediators charge between 200€ and 250€ per hour. Parties should agree before mediation on how this cost will be shared.
Who decides to mediate?
Parties (the people involved in the lawsuit) decide whether they wish to mediate. All parties must agree to participate in mediation.
When can I initiate mediation?
A party can initiate mediation through their lawyer or a mediator at any time. All parties must agree to proceed to mediation
What do I do if I am asked to mediate?
A party asked to mediate must indicate if they want to mediate or not. A party may provide reasons why they do or do not want to mediate.
What happens next?
If parties agree to mediate, a mediator is selected by the parties and a mediation session is scheduled. The parties or their lawyers contact the mediator directly to schedual a mediation.
If the parties disagree about whether or not to mediate, they may still wish to meet with a mediator to learn more about mediation.
What happens if the parties reach an agreement during mediation?
If the parties are able to resolve their dispute in mediation, the terms of the agreement are written down. The legal action is over when all the terms of the agreement have been fulfilled. The agreement may include terms that the Court could not impose.
Any agreement reached is entered into freely and voluntarily by the parties.
What happens if the parties cannot reach an agreement during mediation?
Mediation has been successful for many people but it does not work for everyone. It is possible that the parties may be able to resolve some, but not all, of the issues in dispute.
If the parties are unable to resolve the matter in mediation, the parties can continue with the traditional litigation process. If parties do go to court, the trial may be shorter and easier because of the mediation.
If an agreement is not reached, the parties walk away from mediation having gained a better understanding of each others points of view and of the issues that need to be resolved.
Is the mediation confidential?
Mediations are private - unlike trials, which happen in courtrooms open to the public.
Everything said in mediation is confidential, unless the law requires information to be revealed.
Parties may also agree that the information does not need to be kept confidential.
What is the role of the mediator?
The mediator is impartial and neutral. The mediator does not make any decisions or determinations and does not suggest solutions. The mediator will assist the parties and their lawyers in reaching a solution.
The mediator controls the process, while the parties control the results.
The mediator will:
assist the parties in defining the issues in dispute;
help the discussion to stay on track;
enable the parties to identify and communicate their interest clearly; and
assist the parties in developing a range of creative solutions.
What is the role of the lawyer?
Lawyers may attend a mediation if all parties are in agreement.
Lawyers assist with the following:
educating their clients;
developing negotiation strategies;
encouraging their clients to speak persuasively to ensure that there is a thorough understanding of the circumstances of all parties;
developing a range of creative solutions to meet the parties interests;
assisting to evaluate the most attractive options; and
ensuring that solutions reached are workable and practical.
What are the roles of the parties?
The mediator controls the process, while the parties control the results. The mediator will assist the parties in defining the issues in dispute. The parties determine what issues need to be addressed. The parties do most of the talking during the mediation. After having the opportunity to thoroughly discuss each of the issues, parties will be able to develop an understanding of their common and separate interests. Any decisions will be made voluntarily by the parties themselves.
What are the benefits of Mediation?
Mediation offers parties the following benefits:
A reduction in the time and financial costs of the traditional litigation process by resolving some or all of the dispute;
A reduction in the stress that can result from ongoing conflict;
A greater understanding of the dispute;
Maintenance of business and personal relationships; and
The creation of a high quality positive outcome.