WHAT IS MEDIATION?

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What Is  Mediation and Conflict Management?

  • Mediation or alternative dispute resolution, can be defined as a conciliation seeking process facilitated by a third party representative, the mediator.
  • It is an effective means of dispute resolution for any dispute, disagreement or conflict not requiring a judicial or third party determination. It provides a forum and an atmosphere in which parties gain understanding, become understood, and work together to explore options for resolution. By resolving disputes in mediation, parties determine for themselves what is important and, ultimately the outcome of the situation.

The most important differences between mediation, litigation and arbitration:

  • Litigation and arbitration are expensive, time consuming and traumatic processes. Mediation is a far cheaper, quicker and a much less traumatic process to resolving a dispute.
  • In mediation the parties resolve their dispute themselves, assisted by the mediator which facilitates the process. In litigation as well as arbitration the dispute is taken out of the hands of the parties and is decided by a judge or arbitrator from the evidence provided, and the outcomes forced onto either parties.
  • 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 and the prospect of future relationships. Litigation is a complex and time consuming processes which results into a win-lose outcome which is decided for you, regardless of whether or not the legal outcome is what the parties really want.

What to expect at a mediation

  • The mediator will make all the necessary arrangements for the mediation after he phoned and met with both parties.
  • At the mediation the mediator explains the ground rules of mediation process to either parties during a joint session. Then gives both parties the opportunity to explain the events leading up to the dispute.
  • After their opening statements the mediator has private sessions with the parties, if he sees fit using such individual meetings, during which he explores their interests and concerns and how these may be satisfied. All sessions, jointly and individual, are private and confidential and the mediator may not disclose anything said to him during a private session to the other party, unless authorised to do so.
  • The entire mediation process is also off the record and confidential, the mediator may make use of notes just to steer the process which in the end is discarded. This means that nobody is at liberty to disclose or to make use of any confidential information that have been disclosed to the mediator during the mediation process unless otherwise agreed on.

Legal representation

  • Lawyers can attend the mediation in support of their clients, on their own accord, and sometimes this is desirable. In mediation however it is the parties that take centre stage while the mediator explores their interests and concerns. It is accordingly not compulsory for lawyers to be present during mediation process.

What can mediation be useful for?

Mediation is used whenever and wherever negotiation has failed or is in need of assistance. These are just some examples:

  • Agriculture and farming (landlord and tenant matters, rights of access, use of land)
  • Banking, insolvency and financial services (disputes between customers and banks over lending or other complaints, debt recovery)
  • Construction and engineering (from major infrastructure projects to individual house-building and extension works)
  • Contracts (all manner of commercial and other dealings)
  • Employment and Workplace (individual disputes between employee and employer, team and other group dysfunction, conflict between managers, difficult union/management negotiations)
  • Family (from disputes over access to children to the allocation of property on separation or divorce to family business arrangements)
  • Government, local authorities (legislative errors, waste management schemes, flood control, planning, environment, provision of services, local community issues)
  • Health services (allegations of medical negligence, complaints about care, consultant/consultant conflict, management/workforce relations)
  • Higher education (student complaints, research projects, staff/management matters, funding)
  • Homelessness (mediation services exist in a number of areas to help prevent homelessness)
  • Housing (a home owner resolving disputes between homeowners and renters)
  • Insurance (compensation claims of all sorts, allegations of professional negligence against all manner of professionals)
  • Intellectual Property (patents, copyright, licensing etc)
  • Landlord and tenant (disputes over leases, rent, dilapidations)
  • Neighbourhood and Community (multiple occupancy, nuisance, boundaries, noise, use of open space, conflicting views on use of limited resources)
  • Schools (the use of peer mediation is a real success, Assisted Special Needs Mediation helps resolve concerns and differences parents may have with schools and education authorities over the education of their children)
  • SMEs (supply chain contracts, shareholder conflict, management tensions)
  • Others include: the Not for Profit sector, Management and Boardroom, Oil and Gas, Sport, Personal Injury compensation claims.

Benefits of mediation

While the benefits of mediation vary somewhat depending upon the nature of the dispute, the following are some of the benefits typically associated with mediation:

  • RECOGNITION: In hearing and being heard in the mediation process, parties gain the understanding of the other parties’ point of view, and an enhanced opportunity to be heard and understood themselves.
  • EMPOWERMENT: Parties are empowered to decide for themselves whether and how they would like to resolve a dispute. This self-determination aspect of mediation often corresponds to higher aspirations of how individuals and businesses want to conduct their lives and do business generally.
  • SPEED: In resolving or understanding disputes through mediation, parties avoid the delay of a third party or judicially decided outcome.
  • ECONOMICAL: In resolving or understanding the areas of disputes through mediation, parties save an enormous amount of time, energy, and expense associated with ongoing conflict and litigation.
  • CONFIDENTIALITY: While lawsuits are matters of public record, what came to be known at a mediation can be kept confidential by agreement. Whether a mediation occurs before or after filing of a lawsuit, any form of information generated at a mediation is normally inadmissible evidence.
  • QUALITY OF SETTLEMENT: Studies indicate parties entering into voluntary agreements through mediation are far more likely to adhere to and fulfil commitments made in such agreements than they are with judicially imposed resolutions.
  • REALITY CHECK OPPORTUNITY: In a private caucus, mediation can afford the opportunity to communicate important “reality check” information that may be easier for a client to accept from a neutral.
  • AVOID BAD OUTCOMES: Through mediation, parties avoid both the win-lose and lose-lose, outcomes associated with litigation. Many parties who “win” in protracted litigation often find the overall time, energy, and monetary commitment associated with litigation comes at an enormous cost and loss. Those who lose in litigation surely feel even worse about such an outcome. Mediation can spare parties from all of this and enable them to move forward from disputes efficiently and effectively.

The foregoing are just some of the compelling reasons to mediate disputes. Moreover, there is seldom any serious downside to mediation. While some may hesitate “to put their cards on the table” in mediation, in this era of discovery driven litigation, the old “trial by ambush” days of civil litigation are increasingly becoming a thing of the past. Mediation works not only because it focuses on the parties own interests and agendas, but also because it provides the opportunity for parties to move beyond disputes efficiently and chart their own future.

Conflict Management Services

What is Conflict Management?

  • You don’t have to look hard and far to discover signs of conflict within an organisation, these conflicts or disputes, which is usually the result of conflicting ideas or values, could lead to financial downfall of an organisation or cost millions.
  • It is one of the most costly phenomenon that gets the least attention, and few people know how to resolve it within the organisational boundaries.
  • The first step to resolving conflict or disputes is to accept that there is conflict within the organisation, this is where Alternative Dispute Solutions comes in, we use an array of techniques to distinguish or discover all the issues present and systematically eradicating them with the help of all parties.
  • An internal evaluation would be done on the discovered roll-players to determine who the affected parties are in the dispute and what the origins might be.
  • We would then determine the “Strengths, Weaknesses, Threats and Opportunities” of such dispute within the organisation with the help of a “SWOT” analysis and strategic planning.
  • The aim of conflict management is to enhance learning and group outcomes in the light of any dispute, including effectiveness or performance in the organisational setting. Thus working the problem and not losing valuable time.