An independent mediator is a neutral third party who facilitates discussion and communication between the parties to a dispute to help them resolve their differences. Mediation is a form of Alternative Dispute Resolution (ADR) and is a highly effective way to bring a legal dispute to a negotiated settlement without the cost, stress, inconvenience and uncertainty of a trial or an appeal. Mediation is also a confidential process and the parties can decide to keep what they discuss in mediation private.
Generally, the mediation starts with an introduction from the mediator explaining the process and describing their role in the mediation. The mediator will also indicate any documentation they expect the parties to provide and may set a timetable for that.
After this, each party will have an opportunity to explain their position in the dispute and what they hope to achieve in the mediation. The mediator will usually encourage the parties to express their concerns openly and honestly. The mediator will then assist the parties in exploring what potential solutions to their dispute might exist. This can often take place in separate meetings with the mediator and each of the parties, called caucuses.
In the course of the mediation, the mediator will identify any areas where there are discrepancies in the parties’ understandings of their respective positions. The mediator will assist the parties in identifying what they would like to see happen in the future and in finding ways to reach a mutually acceptable solution.
When assisting the parties in their negotiations, the mediator will help them understand that what is at issue is not only their position but their values and interests as well. Often parties misperceive their own interests and may hide these from themselves in order to gain a negotiating advantage. During the mediation, the mediator will try to uncover the hidden interests and cultivate an attitude of interest discovery in the parties.
A good mediator will have a strong sense of fairness and equality. They will be able to see that a decision which appears to favour one side over the other is probably unjust. The mediator will also avoid making decisions which appear biased or prejudiced. They will ensure that the rights of both parties are recognised and respected.
One of the most difficult tasks in a mediation is to help the parties overcome any obstacles they might encounter in reaching a settlement. This might involve asking them to change their behaviour, for example by agreeing not to make threats or to break promises. It might involve telling them to be clear and consistent, or it might involve urging them to be more generous in their offers. The mediator will also encourage the parties to be honest and candid in their communication and to be attentive to non-verbal forms of communication which can sometimes be a source of misunderstanding.
An independent mediator can be an excellent resource for a solicitor or barrister in their litigation practice. They can offer a fresh perspective, the benefit of their own experience and a wealth of knowledge about the litigation process as a whole and particularly the mediation process itself. independent mediators