The case for mediation

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One way or another, I have been resolving other people’s conflicts for more than 25 years, and in the majority of conflicts one common theme is present.

That theme is an inability of the parties to be sufficiently dispassionate, to resolve their own conflict. Typically, the parties are so entwined in the issues that they cannot be sufficiently constructive to engineer their own resolution to the problem. Without objectivity, parties become ruled by their own version of events, their own bias, and their own view of how the outcome should look, and in those cases, resolution is seldom achieved.

The reality is that we as humans are self-interested. The result being, that in order to see past our own interests there needs to be a third party helping the parties to determine a suitable outcome. In the past, parties have looked to a judge to provide that third party assistance but there are inherent problems in asking the Court to resolve civil disputes. Commentators talk about the excessive cost and delay in civil proceedings but in the writer’s opinion, the most significant factor against initiating court proceedings is that the outcome is not within the parties control. No one can foresee the result of a court case and often the decision maker has an unhappy knack of upsetting both parties. 

It is not surprising then that many New Zealand businesses are resolving their disputes in other ways. There is a significant growth in both large and small disputes being resolved by way of mediation. The reality is mediation is a confidential and consensual dispute resolution process in which an independent and impartially accredited mediator facilitates negotiation to assist the parties to resolve their dispute with an outcome that is acceptable to both parties.

Mediation is a dispute resolution process that does its best to maintain relationships and it is constructive in that vigorous cross-examination of witnesses, claimants and defendants is not the heart of the mediation process. More importantly though, mediation is quick, efficient, and cost-effective, and it works. 

The benefits of mediation 

Control over the Outcome. In mediation the parties control the outcome and the matter is resolved only when the parties agree. No one can force an outcome or result upon you and a party can accept, reject or counter offer any proposal that is made.  

Time. Typically, mediations take between a half day and a day to conclude. Depending on the availability of the parties mediation can be booked and held within a matter of weeks.

Cost. The delay in achieving an outcome through the Court system is a major reason why litigation is so expensive. With mediation occurring in a matter of weeks and not months the time lawyers spend preparing is reduced and accordingly the cost of mediation is significantly less than other forms of dispute resolution.

Confidentiality. Unlike a court case the mediation process is a confidential process, unless all parties agree otherwise. What happens during the course of mediation cannot be disclosed to any other party (with some limited exceptions). If you are mediating a sensitive issue you can be sure that the mediation is held in private and that what is discussed is confidential. 

Without Prejudice. Mediations are held on a ‘Without Prejudice” basis that means that any offer that is made but not accepted cannot be subsequently used as bargaining point. The notion of without prejudice communication allows the parties to be honest and frank with each other safe in the knowledge that what has been said in the mediation cannot be used against them later.

Our thanks to David Grindle, accredited panel member of the LEADR association of dispute resolvers, for writing this article.