FAQs
I can negotiate; why should I mediate?
Why should mediation work when negotiations fail?
Negotiation tends to be confrontational. The parties perceive themselves to be opponents and each wants to “win”. The mediator will try to shift the dynamics of the negotiations away from the entrenched positions.
By a series of questioning techniques the mediator encourages the parties to move away from positional bargaining to a negotiation where the parties view each other as collaborators looking for a way to solve the problem.
In a mediation the parties are not in a confrontational situation. They negotiate through a mediator who helps to introduce objectivity.
The discussions with the mediator are private. Therefore the parties can share confidences with the mediator and reveal their true interest. The mediator obtains a unique overview of the dispute and can help identify ways in which the parties can satisfy their needs. The mediator encourages the parties to explore alternative options, which they may not have been able to consider within a litigation framework.
Mediation offers the parties an opportunity to bring into discussion issues which they cannot or are not allowed to raise in court or arbitration proceedings. But these issues may be fundamental to reaching a resolution.
Does mediation work?
Is agreeing to mediate a sign of weakness?
No. Both parties have already made their positions clear. All they are really saying is that they are looking to try and enter into dialogue to see if they can resolve the dispute in a way that satisfies their respective needs. The aim is to avoid further delay, expense and aggravation associated with the traditional methods such as litigation or arbitration.
In mediation you have nothing to lose. The mediation process is conducted on a without prejudice basis. If anyone is unhappy with the way it is going they can walk out. Nothing has to be revealed to the other side unless you want it to be. If mediation fails then you can turn/return to litigation or arbitration. The preparations that you and/or your professional advisers have done for the mediation will still be useful, although what happens during the mediation cannot be used in any subsequent Court proceedings should the mediation not result in a settlement.
Do I need a professional adviser?
What cases are suitable for mediation?
Do I have to go to mediation?
The other party are refusing to go to mediation, what can I do?
When should I go to mediation?
What if the mediation fails?
You are free to carry on with any existing court proceedings or even start court proceedings. Everything you have told the mediator privately remains confidential. Provided there is no threat to life or limb or illegal activity, nobody can call upon the mediator to repeat what was said, not even the court!
Even if the mediation fails you will have a much clearer understanding of the issues. You may even have been able to agree some points and reduce the length of any court hearing.