What is mediation?
How mediation works

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Friday 4th July, 2008

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For more information about meditation, please contact Di Sinclair at diane.sinclair@wanadoo.fr

How does it work?

To get a better understanding of Mediation, it is important to understand what a mediator is. A mediator is someone who is trained and experienced in resolving disputes by non confrontational means and has all the associated skills. Someone who is neutral - with no direct or indirect interest in the outcome of the dispute and who will say immediately if they know anyone involved in the dispute, so that the parties may decide whether or not to appoint him/her. Someone who is not a judge and cannot impose a solution. He/she is there to help the parties to reach their own agreement.

Mediation is essentially a facilitated negotiation between the principals of the parties to a dispute. It is not an adjudication by a judge or an arbitrator and is not a matter of evidence, statements on oath or judgement.

It can produce results which neither litigation nor arbitration could produce, since a judge or arbitrator must find in favour of one side (WIN/LOSE) and can only award damages, which may or may not provide a real answer to the problem. He cannot for example insist that faulty work is repaired or suggest payment in kind and is unlikely to find a solution which will allow both parties to go forward on a new and constructive basis, and maintain their relationship. Mediation aims to find solutions which the parties can live with.

How should you choose a mediator?

It is advisable to find a mediator who is properly trained, accredited and insured, usually by contacting one of the UK organisations which train and accredit mediators such as The Academy of Experts, CEDR and other specialist bodies. This way you can be sure that the mediator will be bound by an ethical code.

How does the mediator operate?

The mediator is an impartial chairman, sounding board, and devil's advocate helping the parties to assess their strengths, weaknesses, priorities and needs and also those of the other parties. He/she may offer helpful challenges to attitudes or positions and put "What if" questions.

Mediators are not concerned (for the purposes of reaching a settlement) with claims of right and wrong. Points of law in a mediation context will only be relevant where they provide objective criteria to support proposals or offers made, or if they show the likely consequences of litigation in the event of a failure to settle.

How is the process made effective?

The parties give the mediator his/her only powers which are:

• To chair the proceedings.
• To design the agenda and if necessary re-design it as the mediation proceeds.
• To explore the realistic possibilities of bringing the parties together.
• To draft the final agreement.
• To end the mediation if it becomes obvious that no agreement will be reached.

The parties themselves have considerable additional powers which include:

• Deciding what to reveal.
• Deciding how to answer any question or challenge.
• Withdrawing from the mediation.
• Most importantly - reaching an agreement and agreeing to be bound by it.

Why does mediation so often succeed?

• It is a positive process. The parties are collaborating not fighting.
• The needs of both parties can be taken into account.
• Instead of using up energy fighting to win it can be used to get what you need.
• Everyone's feelings can be acknowledged even if you don't agree with them.
• Problems may have arisen out of communication failures which the mediator can help to resolve.
• It is not confrontational.
• Because the problem is new to the mediator he/she will find it easier to look at dispassionately and creatively.
• You choose the mediator and if at any time you feel unhappy with the way things are going you can leave.
• The mediator also wants to succeed. Successful mediations mean satisfied clients.

For further information, please contact Di Sinclair at diane.sinclair@wanadoo.fr


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