what is mediation?

Mediation is a structured, voluntary process to facilitate resolution of a civil or commercial dispute between parties , with assistance from a neutral expert third party mediator.

It is more than simple structured negotiation; it is a highly developed technique for enhancing a negotiation process which shifts the focus from the parties’ respective positions (that is; the problem), to options for a binding, lasting settlement.

Mediator helps to resolve a conflict

Data suggests that the earlier the decision to mediate is taken, the greater its capacity to limit the parties’ exposure to irrecoverable costs; the less entrenched people become in their respective positions; and the greater flexibility the parties have to structure a consensual, commercial and purpose-fit solution: These are alternatives not provided by Courts or Tribunals.

Properly facilitated, it offers real understanding, insight and better information exchange and empathy towards the motivations and commercial drivers of all parties.

The primary components of successful mediation are:

Certainty and control by the parties; research shows that over 85% of disputes are resolved by expert mediation (over 66% on the day; and 20% a short period thereafter).

It is forward-looking, can maintain business/commercial relationships, confidential and generally, much quicker and more cost-effective than litigation or arbitration.

The process is consensual, facilitative and offers greater flexibility of outcomes in terms of solutions, without prejudice to legal rights if resolution is not possible.

why it is important?

Mediation is particularly important and apposite in the present circumstances.

Studies have shown that approximately 90% of commercial disputes are settled by negotiation, before a Court or Arbitration hearing; traditionally ‘at the door’ of the Court. Extensive experience indicates that ‘costs’ of disputes are a massive impediment to a suitable, sensible negotiated resolution.

The fundamental objective of mediation (and effective mediators) is to assist the parties to understand the position of the others and facilitate their own outcome – not one imposed by a Court or another disconnected, dispassionate or disinterested 3rd party.

Almost all of the support and assistance packages offered by the Federal, State and Local Governments, and by Banks, Financial Institutions, Insurers, large businesses and landlords require some degree of negotiation and mediation; but each party needs to step up and be proactive. Given the scope and scale of the post-COVID crisis, the ‘head in the sand’ approach to unresolved legal or financial issues is simply not viable.

So act now, appoint a mediator.

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