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.