We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorneys fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute. Parties increasingly find that they are spending more to litigate than the cost to settle the matter.
Mediation means many things. Often the different meanings are in harmony and improve each other — which is why so many family and other disputes involve co-mediators. However, successful mediation in all of its guises requires several factors to make it work and to ensure that it remains the “something better” that the public has come to think mediation really means (Managing Conflict Through Mediation 21)
Mediation is a facilitative process in which disputing parties engage the assistance of a neutral third party who acts as a mediator in their dispute. The neutral has no authority to make any decisions which are binding on them, but uses certain procedures, techniques and skills to help them to negotiate a resolution of their dispute by agreement without adjudication (ADR Principals and Practice 108).
The term “mediation” is often used interchangeably with “conciliation”; sometimes, however, mediation is understood to involve a process in which the mediator is more pro-active and evaluative than in conciliation; and sometimes the reverse usage is used: there is no national or international consistency of usage of these terms.
... Two alternatives to Litigation: An Introduction to Arbitration and Mediation. Dispute Resolution Journal. New York: Nov 2005-Jan 2006. Vol. 60; ... the high costs in legal fees and time lost at work while in court. Once in the mediation room, the mediator listened to ... trial can be conducted and the referee can make a decision. Dispute in the OrganizationLarge organizations, such as a pharmaceutical ...
Mediation differs from arbitration in that the role of the neutral third party in arbitration is to consider the issues and then to make a decision which determines the issues and is binding on the parties. The neutral third party in mediation does not have any authority to make any decision for the parties, nor is that the mediator’s role or function.
Even where the mediator expresses a view about the merits of the dispute, which may happen in some but not other models of mediation, this would only be a non-binding opinion, and in no circumstances would a mediator have the power to impose this view on the parties. Indeed, any such power would be contrary to the spirit of mediation, which is inherently consensual (ADR Principals and Practice 109).
Use of the term “mediation” may suggest one consistent uniform procedure; but in fact mediation comes in different models and covers different fields of activity, each with its own traditions, ethos and culture. Consequently, a mediator practising in the commercial arena may adopt different procedures and have different views and approaches from a mediator working with neighbourhood and community disputes, both may differ from labour mediation or divorce mediation. Nevertheless, certain fundamental principles and core skills run through all the diverse forms of mediation.
Mediation can also be generally non-binding and non-coercive, but it can be made mandatory to enter mediation (though not to reach an agreement).
As well, mediation could be annexed to the court system, so as to become a judgment of the court if agreement is reached. The parties may define the issues to be settled themselves, or the mediator may assist them in this regard. Finally, the extent to which the mediator interferes in the negotiation process can vary widely, on a continuum ranging from merely acting as a chairperson, to a very structured process in which the mediator may go so far as to suggest settlements to the parties.
Mediation may be inappropriate where parties to a dispute are at an imbalance of power, or where there is a history of physical violence, as one may intimidate the other. In addition, if mediation fails and adjudication follows, it has added another step to the process, thus increasing time and money spent. Unrepresented parties may be at a disadvantage against represented parties in mediation. It is also questionable whether the perceived advantages of mediation are possible if the process is involuntary. If mediation is voluntary, it would probably reach settlement on their own. There are concerns regarding the ability and qualifications of mediators, and whether they should be subject to professional standards. Finally, the use of mediators as an alternative to court adjudication may result in a second class justice for low-income and disadvantaged groups (Dispute Resolutions 66)
INTRODUCTION - THE OBJECTIVE OF FAIRNESS On the 31 st of March 2001, Attorney-General, Daryl Williams, launched the National Alternative Dispute Resolution Advisory Council's (NADRAC) discussion paper on The Development of Standards for Alternative Dispute Resolution. Among the core objectives for ADR highlighted by NADRAC in this document was that ADR uses a process which is considered by the ...
Section 9(2) of the new federal Divorce Act 1985 requires lawyers who undertake to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating support or custody matters, and to inform the spouse of mediation services that might assist the spouses in negotiating such matters. This type of legislation could be extended to other areas in which mediation services are available (e.g. other family disputes or in the community context).
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 a lot 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 position. Today, parties litigate because 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.