Mediation is an alternative dispute resolution to litigation. During mediation, an accredited mediator will act as an independent individual to assist the parties in understanding the issues in dispute and the benefits and needs of each party in order to reach a mutually acceptable resolution. The mediator will also assist in drafting a terms of settlement. If the parties reach an agreement, they have to sign a terms of settlement, which is legally binding. Parties participate in mediation voluntarily and the process of which is absolutely confidential.
Parties do not have to bear the huge legal costs for litigation.
Parties do not have to spend years on litigation to have their dispute resolved.
Parties can control the results of resolution. They do not have to encounter the unpredictable judgments of the Court. They do not have to bear the long-lasting stress and torture of litigation.
Parties do not have to attend days, weeks or even months and torture arising from the cross-examination by solicitors or counsels for hours, days or even weeks.
Parties can maintain a friendly relationship after the dispute is resolved.
The mediation process is absolutely confidential. Parties do not have to worry about disclosing the issues to the public during litigation. The information disclosed during mediation is not admissible in Court.
Parties could understand the views of each other through the mediator so as to solve the dispute by negotiation, to reach a win-win situation.
Most of the time, parties do in fact wish to reach an agreement but they do not know how to do so. Mediators could introduce a new perspective, with their experience and professional knowledge, to assist the parties in reaching new proposals. Some of the proposals may be totally new to the parties.
Mediation is suitable for nearly all kinds of disputes.
However, mediation is not suitable for family disputes involving child abuse, domestic violence, etc. are not suitable for mediation as a party's decision to enter into a settlement may be unduly influenced.
In a family dispute, where one or more of the parties are in a severely disturbed emotional or psychological state, such that they cannot represent themselves or focus on the needs of their children, is not suitable for mediation.
Mediation is most suitable for those people who do not want to put the issues in Court and are willing to commit and solve the dispute peacefully. It is more efficient and suitable for neighbours, relatives, or people from the commercial sector to understand the different needs and benefits of each party through mediation and discuss how to avoid further disputes and maintain a friendly relationship.
The task of mediators are not to make decisions for the parties. The mediator help the parties to think beyond the present situation for possible solutions to the dispute, this enabling the parties to find the path to the dispute resolution that suits them best. The parties will come up with a solution to resolve their own dispute. Unless they come to an concrete agreement, their resolutions in the mediation process will not be final and nobody can force the parties to sign any terms of agreement.
In mediation sessions, the mediator will help the parties to:
Discuss and decide what matters are in dispute;
Explore each party's actual needs and interests;
Expand settlement options and assess the most suitable solution;
Draft a terms of settlement in details for the resolution of each dispute which are agreed by all parties.
All of the Accredited Mediators of our Centre are practising barristers. Accredited Mediators have been trained for mediation skills and methods. They need to meet the requirements of being Accredited Mediators. These requirements include knowledge and skills of negotiation and dispute resolution. Moreover, they have to comply with the Practice Directions of Mediation. Complaints against mediators will be handled by the Accredited Authorities.
Our Centre will conduct a pre-mediation individual interview with each party to understand the case background, the issue in dispute and different acceptable resolution proposals. Then our Centre will arrange a mediator to start the mediation with a joint session to explain the mediation process and the ground rules thereof. The parties will make opening presentations in turn to share their views on the disputes and clearly define the issues involved.
If an agreement is unable to be reached at the joint session, the mediator will usually suggest the parties to retire to separate rooms and he/she will pass between parties assisting them to access the feasibility of their negotiation terms. All matters discussed with the mediator at private conferences are confidential and will not be disclosed by the mediator to the other party without explicit consent.
Throughout the process, the mediators helps the parties evaluate the case, identify their fundamental interest, explore and consider possible consequences if the dispute is not settled, develop alternatives deal with various issues in the dispute and formulate proposals that would help move the process towards a mutual agreement.
The parties may terminate the mediation sessions anytime during the process. If an agreement is reached, the parties will sign a terms of settlement, which will be binding on the parties. If, under the circumstances, an agreement cannot be reached but the outlook is positive, the mediator may take the approach of suggesting the parties to take some time to think over the outcome of the conference. After that, the mediator may contact the parties regarding the unresolved matters. Even an agreement is failed to be reached by the parties at the end of the conference, it can still consider being helpful as it will contribute to the understanding of the point of view of each party.
The mediation process is entirely voluntary, however, if the dispute is or will be subject to Court proceedings, since 1st January 2010, the Court will take into account all relevant circumstances, including whether a party has unreasonably refused to take part in mediation, in exercising its discretion to award costs. You may face an enhanced cost order if the Court finds that you refused to mediate unreasonably.
If the parties could not reach any agreement, they may consider bringing the issue/case to Court and going through the litigation process.
Parties could also reach an agreement for some issues and bring the rest to Court.
Both parties must appreciate that all discussions during a mediation session is on a 'without prejudice' basis - this means that nothing discussed in the mediation can be used as evidence in future legal proceedings.
The parties will not be at a disadvantage after trying mediation which turns out to be unsuccessful. They may find out that the issues are clearer as a result.
Generally speaking, mediators are required by their Ethical and Professional Code of Practice to observe confidentiality in respect of all matters disclosed in the mediation session. When the parties agree to take part in mediation, they will usually be required by the mediator to sign a Mediation Agreement (i.e. an agreement to mediate) that all negotiations undertaken pursuant to the mediation are to be privileged and conducted on a without prejudice basis.
Mediation is considered to be a private and confidential process. Firstly, the mediation process must be remained confidential at all times in that no third party is to be privy to the proceedings other than the parties and mediator. Secondly, under no circumstances should any matters discussed in private sessions be disclosed to the other party by the mediator without permission.