Is mediation a bar to litigation or arbitration?
No. Mediation does not preclude any other methods of dispute resolution.
Isn’t mediation just another word for arbitration and conciliation?
No. In mediation the parties themselves remain in complete control of the
settlement decision – the mediator is a neutral third party, assisting
the parties to negotiate and reach agreement. In arbitration and conciliation
the chairperson takes a more activist role in putting forward terms of settlement.
Isn’t mediation just a compromise?
No. Most settlements in mediations are not the result of splitting the difference
down the middle. Creative solutions involving other aspects of the dispute
terrain are often drawn in and form part of the settlement package.
Isn’t mediation what lawyers, managers or judges “do all the
time”?
No. the key element of mediation is “the mediator” who has the
advantage of being detached from the issue, the emotion and the commercial
pressures. This neutral person, who has undergone specialist training and has
experience, can manage the process of achieving settlement in a way that is
just not possible for parties involved in the dispute.
Isn’t mediation a sign of weakness?
Not at all. It’s by no means a soft option. You have complete control.
It’s a period of intense activity that requires quickness of mind, flexibility
and creativity. The parties need to have great confidence in themselves and
in their case. They need to be able to focus on the future and on key business
priorities and have excellent decision making skills.
Doesn't mediation mean I will be 'showing my hand'?
No. Information disclosure is completely within each parties control. However,
joint disclosure by parties assists settlement and often this occurs quickly
within mediation. New information can be quickly and immediately assessed by
parties saving weeks or months of correspondence.
In this sense mediation is not risky because the release of information, the
terms of settlement and the risks involved are always within the control of
the parties.
