mediations explained

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Our team of skilled attorneys has expertise in a wide range of legal areas, including civil litigation, criminal defense, and immigration law.

Mediation is a process for resolving disputes whereby an independent mediator assists the parties in reaching a mutually satisfactory settlement. It is an extension of the parties’ own negotiations.

The mediation process is entirely voluntary and non-binding on the parties and the mediator. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator’s role is to assist the parties in their negotiations by identifying obstacles to settlement, developing strategies for overcoming them and identifying everyone’s needs.

A mediation session involves a discussion of the dispute by the parties as opposed to the formal presentation of witnesses and evidence that takes place in a trial or arbitration. The session will normally be attended only by the mediator and the parties. The parties’ attorneys may participate in some instances; however can always be on standby for advice. Due to the informality of the process, a mediation can usually be completed within a week. Each case is, however, unique and is treated so.

A mediation session is private and confidential. It is normally held in a private office, meeting room or online, and no public record is made of the proceedings. Any statements made during the proceedings are inadmissible as evidence in any pending or subsequent litigation. However, if parties come to a full or partial agreement, they may agree to be bound through the court.

A mediation session typically begins with a joint meeting of the parties and the mediator (with their attorneys – and in some cases – insurance company or other representatives on standby telephonically). The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask each of the parties to make a presentation of their case, identifying the issues in dispute.

Thereafter, the mediator will usually separate the parties and begin meeting with them in a series of private, confidential meetings called “caucuses”, only revealing information shared by each party with their permission. In these caucuses, the mediator works with each of the parties to analyse their case and develop options for settlement. Normally, the mediator will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached.

Mediation is different from arbitration, as the mediator does not render a decision. Instead, a mediator allows the parties to make their own decisions and fashion their own settlement. The mediator generally doesn’t make recommendations but rather may brainstorm various ideas with the parties and allows the parties to make their own decisions based on a realistic analysis of their case.

Mediation works when the disputing parties want to find a solution.

It is NEVER too late to mediate, but sadly, many parties only consider mediation once they are emotionally or financially drained through litigation.

This does not have to be the case.

Mediation works because:

•   The process is non-binding and confidential, and parties can explore the process without risk.
• The process is informal and not      bound by timeframes, which makes it more cost-effective
• The process is voluntary, and any settlement reached is an outcome determined by the parties themselves; The role of the mediator is to assist the parties in exploring settlement options and not to enforce a settlement as a judge or magistrate would in litigation.
• The mediator can meet separately and in private with each of the parties, creating a safe space for each party to express their views. The mediator may only disclose what is discussed in private with the consent of the disclosing party.
• The parties, therefore, determine their own outcome. Importantly, parties are empowered to decide for themselves how, if at all, they’d like to resolve the dispute. Through self-determination, individuals can base proceedings      on how they aspire to live their lives and or do business.
• Once a resolution has been reached, a settlement agreement is signed.      It is more likely for both parties not to breach the settlement that they      have reached themselves, compared to a party breaching a court order that      they disagree with

Either party can terminate the process at any stage

Mediation is internationally recognised as a successful dispute resolution process, with statistics showing that up to 80% of mediated disputes are resolved.

In cases where the full dispute is not settled, the partial unsettled dispute may continue to litigation. This narrows the issues still in dispute and limits the costs involved in litigating the remaining issues in dispute.

An example of this will be where the parties in a motor vehicle accident agree on the damages/costs of repair, but cannot agree on who is to blame and in what proportions. Only this aspect of the dispute will be referred to litigation.