By Jermaine Ng, Legal Associate
What is mediation?
Mediation is a flexible and confidential dispute resolution process, in which a neutral third-party (the mediator) facilitates negotiations between parties, with the view of resolving the dispute(s) amicably.
We have listed out five key points relating to mediation which we think you should know:
1. Why would I end up at mediation?
Parties typically go to mediation for three reasons. First, they may be bound by their contractual arrangement(s) to do so. Second, attending mediation may be part of the court process or is recommended by the court. Third, because parties are unable to resolve matters privately, and prefer to have a neutral third party assist in the dispute resolution process.
2. Who should I choose as my mediator?
After deciding to proceed with mediation, the parties would then have to agree on choosing a mediator. It is important to select a competent and experienced mediator who is the right fit for your case. Other than fees and availability, the mediator’s experience, subject matter knowledge, neutrality, and language competency are also important factors to consider. More details about selecting the right mediator can be found here.
3. What goes on at mediation?
There are two main parts to a mediation session: (i) the problem defining stages; and (ii) the problem solving stages.
In the problem defining stages, the mediator would start by explaining the mediation process, and set some ground rules to ensure the mediation runs smoothly. Parties would then be given the opportunity to make an opening statement, give their perspective on the dispute, and highlight their points of concern.
At the problem solving stages, the mediator would work with the parties to set an agenda to determine the relevant issues at hand. The parties would meet the mediator either together or separately to discuss and assess areas of settlement thereafter. Apart from examining the strengths and weaknesses of each party’s position, possible agreements are also encouraged. Negotiations would continue until a settlement is reached. In the unlikely event that parties do not reach an agreement, the mediation session either comes to an end, or another session would be arranged.
Should parties reach an agreement to settle, the terms of said settlement would be recorded in a written agreement to be signed by the parties. This settlement agreement is enforceable as a contract, and can even be enforced as a court judgment if it is recorded as an order of court under the new Mediation Act.
4. What are the main features of mediation?
Empowerment. The mediation process empowers parties to come to a solution on their own. Parties can take ownership over their decision and have extensive control over both the process and the outcome of the mediation, instead of having a judge or arbitrator decide on the dispute or the course that is to be taken. The mediator would facilitate discussion between parties and encourage them to see their dispute as a joint problem which requires a combined effort from all parties to resolve.
Confidentiality. Mediation is confidential, and does not compromise your rights in court should you decide to pursue litigation or arbitration at a later date. This confidentiality is protected both statutorily under the Mediation Act, and also by a mediation agreement to be executed by the parties before the mediation begins. Such confidentiality usually relates to the whole process, and information given to the mediator during the process. While arbitration proceedings are usually confidential as well, the same cannot be said for litigation proceedings.
Affordable and Fast. Apart from being more affordable than its other dispute resolution counterparts, mediated disputes tend to be resolved more quickly – most cases are resolved within a day of mediation. This is as compared to arbitration or litigation, which may take years, and negotiations, which may take from weeks to months.
Effective Resolution. Statistically, global average settlement rates are high. Further, studies have also shown that mediated settlements are rarely breached, because parties are likely to keep to the terms they had voluntarily agreed on.
5. What kinds of disputes are suitable for mediation?
Contrary to popular belief, most disputes are suitable for mediation, regardless of their subject matter! Typically, it may be the circumstances which makes mediation unsuitable in any given case, instead of the subject matter.
Having said that, mediation is typically most useful in the following circumstances:
- Where a quick solution is desired;
- Where litigation or other dispute resolution methods would be inappropriate (e.g. due to disproportionate costs, complexity of trial, and so on);
- Where parties desire and intend to continue their relationship going forward; or
- Where private and confidential resolution is important to the parties.
To learn more about mediation, check out our training programmes. Peacemakers is focused on delivering conflict management, negotiation, and mediation training courses to organisations, customised for their specific industries and corporate cultures. Contact us at firstname.lastname@example.org to see how we can assist you with your training needs today!