What is mediation?

“Mediation is a practice by which the parties to a dispute jointly and voluntarily engage an independent, impartial and skilled consultant to guide them through a proven process with a view to reaching interests-focussed, mutually acceptable and durable outcomes.”

– Stephen Dickinson, Ansr. Dispute Resolution

Many people ask what mediation involves or “looks like”. Picture yourself with your trusted advisor, professional colleague, family member or friend in the same building as your opposing party along with a trained mediator who meets with you and the other party, either together or separately, to discuss the background to your dispute, the underlying issues, your rights, needs and objectives and finally potential outcomes, all in a confidential, safe and comfortable setting. This process, when properly followed, commonly generates outcomes that are mutually acceptable to the parties, and that allow parties to move forward having freed themselves of the ongoing stress and costs that disputes so often bring.

Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator:

a) Communicate with each other, exchange information and seek understanding;
b) Identify, clarify and explore interests, issues and underlying needs;
c) Consider their alternatives;
d) Generate and evaluate options;
e) Negotiate with each other; and
f) Reach and make their own decisions.

Section 2 of National Mediator Accreditation System (NMAS) Practice Standards

Why Mediation?

MediationLitigation
Parties select mediatorCourt appoints judicial officer
Parties control costsCosts are subject to factors outside of parties’ control including applications filed by other parties and orders made by the Court
Parties control venue, timing and length of processCourt controls venue, timing and length of hearing(s)
Accelerated process (weeks from start to finish, including preparation)Delayed process (months, if not years, from start to finish)
Focusses on the needs, interests and objectives of the partiesFocusses on the legal rights and entitlements of the parties
Mutually acceptable outcomes are achievableOne “winner” and one “loser”
Allows for unlimited and flexible outcomesDelivers limited and inflexible outcomes
Mutually acceptable and flexible outcomes are more likely durableOne-sided and inflexible outcomes that are often difficult to enforce
No appeal rights causing certainty and closureOrders and judgments can be appealed causing further delay, uncertainty and risk
Adverse costs orders cannot be made against partiesRisk of having to pay or contribute to costs incurred by other parties
Confidential processPublic process
Confidential outcomesPublic outcomes
Without prejudice (discussions and negotiations cannot be used in future legal proceedings)Evidence can be used in future legal proceedings

Ansr. Mediation Guide

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