The Nationwide Academy for Dispute Resolution

LAWYERS AND MEDIATION

Mediation is regarded as being the most flexible and fastest of the ADR techniques as well as being the most cost-effective. It is a proven means of dispute resolution which can generate a settlement equitable to both parties at an affordable price.

Mediation is a voluntary, non-binding, without prejudice process. Trained third party mediators attempt through negotiation techniques to bring the parties to a dispute together in a binding or non-binding settlement agreement. Where the mediation process ends with a binding agreement between the parties, that agreement can be enforced, simply and quickly, by the courts should the need arise.

If any of the parties to the mediation process, including the mediator, are dissatisfied with the process at any time, that party can terminate the process. The claimant may then proceed to assert his legal rights through the court system or through arbitration.

The problem with the court system is that it is adversarial and leads to a winner takes all outcome. Often the court's decision is the result of a very fine distinction drawn on the basis of a mere balance of probabilities. There is little room for compromise and the parties may be left with a feeling that justice has not been done. The system guarantees that at least one of the parties may be disgruntled with the judicial decision. Mediation avoids these problems. In mediation the parties are in charge of the dispute resolution process.

WHY MEDIATION WORKS AND ADVANTAGES OF MEDIATION
Mediation allows the parties to a dispute to air their views in an informal setting. The mediator explores potential ways of settling the dispute with each party, guiding the parties to a more realistic view of their situ-ation by highlighting the strengths and weaknesses of their case the risks inherent in failing to reach a settlement. The parties are in control of the process and the outcome. Even where a mediation fails the parties often narrow down the scope of the dispute to a single issue which can then be dispensed with quickly by the court.

The advantages of mediation are said to be :-

• speed of dispute resolution (usually 3-4 weeks with a 1 day mediation)
• cost savings - both for the process and in respect of the extent of legal fees
• improvement in communication between the parties
• a flexible informal procedure
• addresses unreasonable claims and expectations. Should produce a fair outcome