Please note that the responses set out below are of a general nature and should not be relied on in the absence of specific legal advice.
What is mediation?
Mediation is a form of negotiation that is assisted by an independent person (“the mediator”), who controls the negotiation process. The mediator does not make a decision regarding the dispute (unless the parties agree to this happening) and it is up to the parties to decide the outcome.
What are the advantages of mediation?
Mediation assists with communication between the parties to a dispute and may help to preserve any ongoing relationship between them.
Mediation allows the parties to explore options to resolve the dispute which may be more flexible than the options available to a Judge or an arbitrator if a decision is imposed on them.
Mediation is less formal than a court hearing as it involves the parties sitting together with their legal representatives and the mediator to discuss the dispute.
A mediation can usually take place much quicker than a court hearing.
Mediation is less expensive than a trial 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 in order to reach a settlement 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 at a mediation.
What happens at a 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 by the mediator 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.
Mediation – Peter Davey, Auckland Barrister | Mediation