WHO MAY BE A MEDIATOR
Anyone may be a Mediator. However Mediation is developing into a Alternative Dispute Solution methodology with Structured and Systematic approach.
Recently there are more and more Mediators who are Trained and Qualified by a variety of Institutions or Organizations such as The Royal Institute of Chartered Surveyors.
Qualified Evaluative Mediators have contextual knowledge of the nature of the dispute between the parties and may provide the parties with contextual information to assist them in reaching a settlement.
Traditionally no one is excluded from acting as a Mediator. There is the classic example in the Bible, which extols the wisdom of King Solomon where two women were in dispute as to who the real mother of a child was. The matter was settled when the King proposed that the child be cut in half and each would get one half of the child. The real mother quickly withdrew her claim which confirmed to the King that she must be the real mother as she cared for the well-being of the child. Today, there are many training programs that culminate in a certification that the Mediator is skilled in this form of Alternative Dispute Resolution. Such certification lends more credibility to the process of mediation and the parties to the dispute are more likely to trust the process will be conducted in an unbiased manner under the guidance of a Certified Mediator.
A specialized certification is that of Evaluative Mediator. The Evaluative Mediator is not only qualified to conduct Mediation proceedings but also have contextual knowledge of the nature of the dispute. The Evaluative Mediator may provide the parties with general information or facts to enable them to understand the essence of the dispute. E.g. in a dispute between two partners in a business, a financial audit may provide both parties with information upon which agreement can be reached. In a construction dispute, the Evaluative Mediator will typically have professional knowledge of the form of Agreement the parties entered into and the interpretation of the clauses in the Agreement.
WHAT IS MEDIATION?
Mediation and Negotiation are two sides of the same coin. Mediation has gained much popularity due to the short and swift duration of the procedure. Mediation is a process for resolving disputes by which an independent mediator assists the parties in reaching a mutually satisfactory settlement. It is an extension of the party’s own negotiations and is sometimes referred to as a “supercharged negotiation.”
A mediation session involves a discussion of the dispute by the parties, as opposed to the formal presentation of witnesses and evidence such as takes place in a trial or arbitration. The session will normally be attended only by the mediator, the parties and their attorneys. Because of the informality of the process, a mediation can usually be completed in a day or less.
The mediation process is entirely voluntary and non-binding. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator’s role is to assist the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them.
A mediation session is private and confidential. It is normally held in a private office or meeting room and no public record is made of the proceedings. If no settlement is reached any statements during the proceedings are inadmissible as evidence in any subsequent litigation.
A mediation session typically begins with a joint meeting of the parties, their attorneys and in some cases, insurance company representatives. The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask the attorneys for each of the parties to make a presentation of their case, identifying the issues in dispute.
Following the joint meeting, the mediator will usually separate the parties and begin meeting with them in a series of private, confidential meetings called “caucuses”. In these caucuses, the mediator works with each of the parties to analyse their case and develop options for settlement. Normally, the mediator will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached.
Mediation is different from an arbitration in that the mediator does not render a decision. Instead, mediation allows the parties to make their own decisions and fashion their own settlement. The mediator generally doesn’t make recommendations but rather, allows the parties to make their own decisions based on a realistic analysis of their case.
WHY MEDIATION WORKS
The bottom line is that mediation works! It works because it brings all necessary parties to the bargaining table where they can “realistically” evaluate their positions and safely explore settlement options. It works in settling over 85% of the cases in which it is utilized, including those where the parties have been unable or unwilling to negotiate, or have taken unrealistic or intransigent positions.
Parties litigate when they know of no better alternative. However, as the benefits of mediation become more widely recognized, it will undoubtedly become the most utilized tool for resolving civil disputes in the future.
Mediation is a structured systematic process to assist parties to reach an agreement by consensus.
- It is a voluntary process which both parties have agreed to.
- The Mediator is an independent appointee whose appointment both parties have consented to.
- The venue should be neutral and safe environment with a relaxed atmosphere because the mediator can control and direct the communications.
- Unproductive discussions can be avoided and concessions or proposals will be communicated only if they are likely to lead to a settlement.
- All communication or admissions or concessions are confidential.
- No admissions or concessions may be used in subsequent litigation in a Court of Law.
- The main characteristic of the process is conciliatory as opposed to confrontational. It deescalates the tension between parties which may have evolved during negotiations between their attorneys who often fear that the making of any “reasonable” settlement offer will be taken as a sign of weakness or will be used by the other side as the starting point for the next round of negotiations.
- Negotiations are often unsuccessful because the parties lack essential negotiation skills. Attorneys are often more interested in posturing, than in resolving disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement.
- As the Mediator’s job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.
- Mediation provides the opportunity for all parties to meet at the bargaining table for the express purpose of discussing settlement.
- All decision-makers necessary to resolve a problem are normally present. In the mediation environment, they focus their entire attention on reaching a settlement.
- Mediation commences with an opening statement by each party who is given the opportunity to directly educate and influence their opponents in the opening presentation.
- The Claimant is afforded the opportunity to state its case and the Respondent then may reply. Important issues can be emphasized and facts can be presented in a more favourable light.
- The intensity of a party’s feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic view of the opposing position (one not filtered through lawyers) and often results in the consideration of settlement proposals that otherwise would have been rejected.
- Mediation allows each side to “test market” with a settlement proposal privately conveyed to the mediator in a caucus. Unless authorized to do so, the mediator will not convey the proposal to the other party. The mediator will, however, be able to receive confidential proposals from the other side. As a consequence, the mediator will be able to determine whether a proposal is feasible without actually disclosing it to the other side. This allows each side to fully explore settlement options without negotiating against themselves or appearing to “give in”.
- Mediation offers each party a “realistic” look at their case and what results they are likely to achieve in court or arbitration. As the parties become clear on what they can realistically expect to achieve, their positions on settlement become more reasonable and flexible.
- Mediation assists the parties in developing options for settlement. The more options that are developed, the greater the chances of success. Experience demonstrates that attorneys often excel in developing facts that support their positions but bog down when it comes to developing settlement options. The mediator can assist the parties to clarify their real objective and to consider alternatives that might be overlooked by attorneys engaged in battle.
Mediation is normally concluded within one day and is therefore the quickest and most cost effective of the ADR processes.
SUBSCRIBE AS A MEDIATOR
- Anyone, who classifies themselves as a MEDIATOR as described above, is invited to register under this sector and to benefit from the discounted social and educational activities of the Experts Register.
- Engagement with other members is easily facilitated by using on-line conference programs such as ZOOM, SKYPE, WhatsApp etc. thus eliminating the need to travel and its associated costs or the physical attendance of workshops and seminars.
- On-line systems such as ZOOM or SKYPE makes live interaction with members and course presenters easily available to anyone with internet access.
- Payment platforms such as PAYFAST facilitates easy and quick payments to access the services provided by our Members, Tutors and Lecturers who are associated with The Experts Register.
- Mediators can earn an income by providing their services at a Fee. There is a field in the application form where an indicative hourly rate must be entered. This rate will be displayed along with your proximity to enable Users to see if your profile meets their requirements. These filters are there to minimize unsuitable enquiries. It is only displayed when your profile meets with a User’s search criteria.
- The indicative fee should be fair and valid for most engagements but may be amended upon further consultation with the User (Client).
- Searches are made on a matching of Keywords contained in the description of your services, abilities and specialities. This text box is where you tell us what you are good at. Keywords which are not on the database will be added, subject to our filter for inappropriate content.
- Mediators may promote their services on this system and once introduced, further engage with the Client, as usual, without this system.
- The subscription fee for this Prestigious category of MEMBERSHIP is only ZAR R1,200 (±$80 US) per year. You could recover your membership fee many times over with your first consultation or appointment. (Even if you get only one appointment in 5 years!) You’ll benefit much more from the available discounts.
- Register now at an Early Adopter’s discount : only ZAR R600 (±$40) for a full year!
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