What is mediation?

Mediation is negotiation assisted by a third party who does not have authority to make a decision in respect of the dispute. The mediator controls the procedure but the parties control the outcome. This gives the parties the opportunity to find solutions which may be more flexible than a decision imposed by a Judge or an arbitrator.

What are the advantages of mediation?

Mediation is particularly useful in preserving any ongoing relationship between the parties in dispute. It is also relatively inexpensive compared with an arbitration or court hearing and the mediator's fees and expenses are usually shared equally by the parties.

Mediation is also confidential and held on on a "without prejudice" basis. This means that anything said during the course of the mediation cannot be used subsequently in any arbitration or court proceedings, except in limited circumstances.

What are the disadvantages of mediation?

Mediation invariably involves compromise and depends on each party's willingness to resolve the dispute. As a result, there is the possibility that the dispute may not be resolved although it nevertheless usually assists in identifying and narrowing issues in dispute.

It is also necessary to issue separate proceedings to enforce any settlement that is reached.

What happens at a mediation?

At the mediation, the mediator usually makes some introductory remarks about the mediation process. Each party is then given an opportunity to make an opening statement setting out that party's perspective of the dispute. After the opening statements the mediator assists the parties to identify and discuss the issues between them and ultimately explore solutions for settlement.

As part of the process the mediator may "caucus" the parties (i.e.) meet with them and/or their representatives in private to discuss certain aspects of the dispute and to explore possible solutions. Any information disclosed to the mediator during a caucus session will not be conveyed to another party without express consent.

If a settlement is reached then the parties or their representatives will draw up an agreement or at least heads of agreement for the parties to sign prior to leaving the mediation.