If you are in dispute with another individual, whether it be a family dispute or consumer-related issue, litigation should always be avoided where possible. Taking a dispute to court can be a very expensive and stressful process and can take an unnecessary amount of time. Alternatives to taking a dispute to court is negotiating a settlement, and one of the most effective alternatives is mediation.
So, What is Mediation?
Mediation is the most common form of dispute resolution and alternative to litigation. It is a process where an independent non-biased mediator is appointed to help two disputing parties come to a mutually binding agreement. If you are currently going through a divorce or separation then you will need a family mediator that specialises in divorce mediation as alternative dispute resolution.
However, mediation doesn’t guarantee a settlement or resolution. It is up to the disputing parties whether they will decide to enter an agreement or not. Both parties must agree to take part in mediation in order for it to happen. One party cannot force the other into the process.
Who is The Mediator?
If two disputing parties agree to enter the mediation process, then they will need to appoint an independent mediator. When choosing a mediator, their experience, track record and professional background must be considered as they will need to understand the issue that is being disputed. After an independent mediator has been appointed, the two disputing parties will be asked to enter a mediation contract. At this point, it is usually requested that the mediator keeps all the information throughout the process confidential. If the mediator is a practicing solicitor, then they must comply with Solicitors’ Code of Conduct. This is a set of standards of the regulations of conduct expected of professional mediators in Wales and England. Appointing a mediator who is also a solicitor is generally the best option as they will have the best understanding of any legal issues that are involved in a dispute.
Before the mediation process begins, a mediator will carry out a Mediation Information Assessment Meeting (MIAM). This is so the parties can find out more about what the process entails and if they deem it the right solution to reach an agreement.
What is Involved During The Mediation Process?
At the beginning of the mediation process, the disputing parties should agree on a structure that mediation should follow. A suitable location will also be chosen for the process to take place. It will normally be a venue that has multiple rooms when both parties can discuss their issues in private with the mediator. Each party may also be required to prepare some documentation for the mediator before the process can begin.
A plenary session usually starts the mediation process and typically begins with the mediator introducing the nature of the dispute making objectives more very clear. During the plenary session, the mediator will also deal with any issues or legal matters that may affect the objectives of the process.
Following the plenary session, each party will present their side of the dispute to mediator where they will not be interrupted by the other party. However, the mediator may allow for questions to be asked after each party’s presentation. But, this normally depends on the nature of the dispute. Throughout the process, there is usually a breakout sessions where the individual parties are moved to separate rooms where they can speak to the mediator about how the proceedings are going. The mediator may try to narrow down the issues involved in the dispute to help facilitate negotiations between both parties.
What Are The Outcomes of Mediation?
The outcome of mediation will typically depend on what the dispute is about and what it entails, but in most cases, a full or partial settlement is agreed. If the mediation is unsuccessful or if one of the parties terminates the process, then both parties can go to court for a dispute resolution. If a full settlement has been reached, an agreement will be written. These agreements are normally drawn up by a solicitor. A settlement can only be enforced if both parties enter a legally binding agreement. If either party do not follow what is in this agreement, then they will be at breach of contract.