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  • Party Co-operation. Mediation is a voluntary, non-binding, without prejudice process which will not take place or succeed unless the parties enter into the process in a spirit of co-operation and with a commitment to try their best to attain a settlement or at the very least to enter the process with an open mind.
  • The dispute must be a suitable case for mediation. The parties must have the legal right to reach a settlement so disputes about issues in which the state or society has an interest may not be suitable for mediation. Criminal and divorce cases are examples of this since it is a court that will punish criminals and grant divorce petitions.
  • The parties must have scope for and a preparedness to compromise. Where the validity of a claim is not in doubt and there is no reason to compromise the case should go to court, as with an undisputed claim for a non payment of a debt. Even in these circumstances the parties may be able to negotiate a rescheduling of the debt. If a party is totally opposed to compromise a court hearing needed.
  • Professionally mediator. The mediator must be trained and skilled in the art of mediation. The negotiation and communication skills of the mediator are central to the success of the process.
  • Independent expertise. The mediator should be an expert in the field of the matter in dispute. Unlike a court the party representatives are not advocates, so the representatives will not set out and argue all the legal issues of the case and present expert evidence and cross question witnesses so it is essential that the mediator has a firm grasp of the customs and practices relevant to the dispute in order to assist the parties in reaching a realistic settlement.
  • Party Confidence in the mediator. The mediator must assure the parties that he is not biased and will act in an even handed manner. The mediator is not there to judge the merits of the case. The mediator help the parties to make a realistic assessment of their expectations based on their legal rights and practical realities leading to an agreement which is fair and acceptable to both parties. A mediator should not give either party legal advice. The mediator will give an indication of what the other party is prepared to settle for and may ask a party to consider whether what that party wishes to achieve is in fact realistically achievable. A mediator should not express an opinion about the merits of an offer or coerce the parties into a settlement. A coerced agreement is no agreement.
  • Party Confidence in the process. The process should be efficiently organised and governed by a strict code of conduct and ethics.
  • Party Representation. It is not strictly necessary for the parties to be represented at mediation but it is highly desirable.

Contrast with conciliation ADR globally
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