Barry Winbolt – Mediator

What is mediation?

A method of alternative dispute resolution in which a neutral third party helps resolve a dispute. The mediator does not have the power to impose a decision on the parties. If a satisfactory resolution cannot be reached, the parties can pursue more traditional means such as arbitration or the law.

“Mediation is not about problem solving or allowing a third party to devise a clever compromise.It is fundamentally about empowerment and taking responsibility for being part of the problem AND part of the solution.”

Mediation is different from traditional forms of dispute resolution that offer financial compensation, impose penalties or make specific orders requiring parties to act in a certain way. Since it is a voluntary process, and properly handled, mediation tends to generate more creative solutions that better meet the interests and needs of the parties in dispute.

Other versions of the above definition are:

A process in which a neutral third party assists disputing parties in reaching a mutually acceptable settlement. The neutral third party attempts to clarify the dispute for the parties and provides suggestions for resolution.
A method of alternative dispute resolution in which a neutral third party helps resolve a dispute. The mediator does not have the power to impose a decision on the parties. If a satisfactory resolution cannot be reached, the parties can pursue a lawsuit.
Mediation is a voluntary, non-binding without prejudice method of resolving disputes. Information is shared with a neutral individual (the mediator) who helps the parties in dispute to negotiate a settlement. The mediator does not decide or judge the case but helps the parties to reach their own agreement through establishing genuine agendas and areas of common ground.

From these definitions we can see that mediation is a voluntary, collaborative process that assists the parties to find their own solution. Central to mediation is the concept of “informed consent.” So long as participants understand the nature of a contemplated mediation process and effectively consent to participate in the described process, many forms of mediation process is possible and appropriate. Mediation is increasingly used in the workplace, in divorce, in schools, in the community and so on.

The key qualities of the mediation process are that it is:

Voluntary

Either party can leave at any time for any reason, or no reason.

Collaborative

You are encouraged to work together to solve your problem(s) and to reach what you perceive to be your best agreement.

Controlled

You have complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on you.

Confidential

Mediation is entirely confidential. Anything discussed during the process may only be revealed by the mediator to another party (including an employer, the press or any other interested group or individual) with the express consent of the party involved. Mediation discussions and all materials developed for a mediation are not admissible in any subsequent court or other contested proceeding, except for a final and signed agreement between the parties.

Informed

The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Mutually acceptable experts can be retained. Such jointly obtained expert information can be designated as either confidential to the mediation or, as the parties desire, as admissible in any subsequent contested proceeding. Expert advice is never determinative in mediation. The parties always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought is, ultimately, a decision of each mediation participant.

Impartial, Neutral, Balanced and Safe

The mediator is non-partisan and has an equal and balanced responsibility to assist each mediating party equally. He or she cannot favour the interests of any one party over the other, or a particular result in the mediation. The mediator is ethically bound to acknowledge any interests or bias that could influence the issues in discussion.

Self-Responsible and Satisfying

Based upon having actively resolved their own conflict, participant satisfaction, self-esteem and the likelihood of compliance and all likely to be enhanced when mediation is used.

What mediation is not

The mediator’s role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.

The process

The mediation usually begins with a joint session where the mediator explains the process and invites each party to present their view of the dispute briefly and informally. The mediator then meets with each party privately and in confidence to discuss their respective positions. With this information and with the parties’ express authority, the mediator will try to establish areas of common ground and provide parties with the opportunity of exploring proposals for a commercially viable settlement.

What types of dispute can be mediated?

Mediation can be used to resolve a variety of commercial and civil disputes. However, it is unlikely to be appropriate in cases where a party requires a clear judicial decision on a point of principle or when someone simply wants their ‘day in Court’.

Agreeing to mediate

The new Civil Procedure Rules encourage the use of alternative dispute resolution methods, of which mediation is one. The process of mediation cannot be effective without the willingness of disputing parties to come to the table. Agreeing to mediate is not a sign of weakness. It is a sign of commercial common sense and will usually be offered by a party confident with the merits but concerned about the economics of the case if it is not resolved at an early stage. If you have a dispute which you feel could be settled by mediation suggest this to the other party. I am happy to help in discussing the proposal of mediation with the other party, just ask.

Barry Winbolt