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What is Mediation?
Mediation is sometimes referred to as assisted negotiations, but it is much more than that. In mediation an independent third party, the mediator, creates a safe environment for the parties to talk to each other confidentially and without prejudice.
The mediator makes use of specialised skills to assist the parties to generate options for the resolution of their dispute, options that are generally not available during litigation.
The most important differences between mediation on the one hand and litigation and arbitration on the other hand are:
- Litigation and arbitration are expensive, time consuming and traumatic. Mediation is a far cheaper, quicker and much less traumatic.
- In mediation the parties resolve their dispute themselves, assisted by the mediator. In litigation and arbitration the dispute is taken out of the hands of the parties and decided by a judge or arbitrator.
- Mediation focuses on the underlying concerns and interests of parties, exploring ways in how they can be satisfied. In litigation and arbitration the focus is on the legal rights of the parties and not on their true interests and concerns, which are rarely taken into account.
- In mediation creative thinking is encouraged, invariably optimising value for both parties with win/win outcomes. In litigation complex and time consuming processes result in win/lose outcomes, regardless of whether or not the legal outcome is what the parties really want.
The mediator will make all the necessary arrangements for the mediation after his appointment at a preliminary meeting.
At the mediation the mediator explains the essential features of mediation to the parties during a joint session. Then he gives everyone the opportunity to explain the events leading up to the dispute.
After their opening statements the mediator has private sessions with the parties during which he explores their interests and concerns and how these may be satisfied. All private sessions are private and confidential and the mediator may not disclose anything said to the mediator at a private session to the other party, unless expressly authorised to do so.
The entire mediation process is also off the record and confidential. This means that absent an agreement to the contrary, nobody is at liberty to disclose or to make use of any confidential information that would not have been disclosed but for the mediation.
Lawyers can attend mediation in support of their clients and sometimes this is desirable. In mediation however it is the clients that take centre stage while the mediator explores their interests and concerns. It is accordingly not compulsory for lawyers to be present during mediation.
Our great clients:
"For me it was an intense, challenging, exhausting, paradigm changing and stimulating experience"
"The course offers a vista of opportunities for the mediation process to play a value-adding role to dispute resolution in the private sector. This long-awaited, cost-effective intervention must be enthusiastically and passionately embraced by all corporates."