Time to make up? Mediation could be the first step
PUBLISHED: 09:47 12 April 2017 | UPDATED: 16:32 12 April 2017
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A civil or commercial dispute doesn’t have to end up in the courts. Mediation could save you time, money and stress - and get you a more satisfying result to boot.
Now that spring is officially here, it’s the perfect time to look forward and deal with any lingering issues from the last few months.
Disputes, whether they are with neighbours or businesses, can often involve high tensions. If communication collapses, one or both parties may turn to the courts to settle their differences. However, it may be worth trying mediation before litigation.
The ins and outs of mediation
Mediation is simply a process that seeks to settle disputes with the help of an unbiased independent third party (the mediator). The mediator works with both parties to create a commonsense solution that works for everyone involved - reducing the need to go to court.
The process is completely confidential to the parties. The mediator also won’t share private information with the other party unless given permission to do so and no one involved in the process will be able to use the mediation details in court if a solution isn’t found.
Settlements reached are binding and legally recognised.
Benefits of mediation
Taking a case to court can be costly and the outcome uncertain. Mediation therefore has several key advantages over litigation.
• Time - A court case can linger for 12 months or more. Once arranged, mediation takes place swiftly and can usually be resolved in one day.
• Cost - In mediation, both parties share the cost and there is no need for either side to have their lawyer present. The shorter timeframe of mediation also means that costs are reduced.
• Terms - In court, a judge hands down a legal ruling that both parties are forced to abide by. A mediation agreement, on the other hand, is developed and shaped by the people involved. It can be more flexible and personal.
• Relationships - Going to court picks out a ‘loser’ and a ‘winner’. This can damage important business or neighbourly relationships - or break them altogether. By mediating, both parties have the chance to discharge tension through negotiation and put in place an agreement that resolves the situation.
• Stress - A court case can be much more stressful, particularly if the case runs for a long time. By reacting quickly and starting mediation before problems become too entrenched, you could solve the issues before they become unwieldy. The mediation process is also much more informal, which can make it a less stressful experience.
How does it work?
Mediation is a voluntary arrangement, so both sides have to agree to participate. However, if one side is seen to have ‘unreasonably’ refused to mediate, the court could penalise them with costs whether they win or lose.
In civil or commercial mediation both parties first provide the mediator with necessary documents and a summary of the case.
In most cases, the two parties will be separated into two rooms and the mediator will switch between them. There may be occasions in which all parties are brought into the same room but this will only happen with everyone’s agreement. If the dispute is resolved, the mediator will write up a legally-binding agreement.
Mediation in the workplace
Mediation can also be effective in the workplace by helping co-workers to iron out their issues. This could be a dispute between two colleagues doing the same job or a problem between a worker and their line manager.
The aim of the mediation is to provide the co-workers with a basis upon which they can work together harmoniously. The solution is only morally binding but because both parties have input into the solution, it is more likely that the agreement will be stuck to.
How does workplace mediation work?
The process for a workplace dispute is slightly different to a civil or commercial mediation. In a workplace dispute a mediator will first talk to each party separately before bringing everyone together. This can be in the workplace, at the mediator’s office or a neutral territory. The two parties will dictate how the process unfolds and the mediator, if asked, can give suggestions.
At the end of the process a written morally-binding agreement is drawn up by the mediator. It won’t appear on your HR record and its details are completely confidential.
Find the right mediator
Mediators do not necessarily have to be lawyers but they do require special training.
Choosing a local mediator will assist in the process and help resolve the issue more quickly. You can find a qualified mediator in your area by using the Civil Mediation Council (CMC) website.
Make use of recommendations from friends, families and colleagues too. It’s possible to talk to a potential mediator before you hire them. A good mediator will develop a rapport with you very quickly and will be approachable and personable. After all, you will entrust the mediator with important personal or professional information.
Other good qualities to watch for are professionalism and the ability to make constructive comments. The mediator gets to see both sides of the dispute so it’s important that they are able to supply you with helpful and useful suggestions.
In a workplace dispute, your HR department or employer will need to engage a mediator if they do not already have one. This won’t affect your confidentiality - the mediator will be employed by your firm but won’t give any details to anyone outside of the process.
• This article was sponsored by Hatch Brenner. You can find out more on their website.