About Mediation
In a nutshell...
There is a famous parable in mediation about two children fighting over an orange. The parent cuts it in half and gives each child half the orange. Later she finds that one child has used the orange peel (for a recipe) but left the inside uneaten, the other child has eaten the inside and left the orange peel. A mediator may have been able to work with the children to get the best outcome for both, (one gets all the peel, the other gets all the flesh).
In mediation both parties work with the mediator to find a way to resolve the issues such that they can avoid court (or whatever the next step would be) and reach a solution that they have created themselves and so can live with and move on. It is up to the parties to do the work and find the settlement. The mediator will not make any judgements or evaluations or say what the solution should be. The mediator is trained to facilitate the process. Mediation is voluntarily (all parties agree to do it) and confidential (the mediator never discloses anything that is said unless instructed to do so by the party.
Types of Mediation
Civil and Commercial Mediation
This is the most common type of mediation. It can cover anything that may otherwise be dealt with by litigation. Examples may include disputes to do with breach of contract, building or construction, estate or inheritance, boundary disputes, landlord/tenant, professional negligence etc.
If you go to court it can take a long time and be very expensive. The judge will decide for one party or the other – there will be no midway. Even if you win you may not get your fees paid and may end up out of pocket. Although your lawyers say you have a good case they know that the judge may not see things that way, there are no certainties. The lawyer’s job is to present your case as strongly as they can. If they were working for the other party they would also say that they had a good case. The lawyer is not being disingenuous but even the strongest cases only have a partial chance of being the subject of the judge’s approval. Increasingly now, judges expect people to go to mediation before they go to court and can take a punitive view if people have refused. If the mediation does not work there is nothing to stop either party carrying on through the court. The mediation takes place in separate rooms and the mediator moves between them. Each party speaks in absolute confidence with the mediator (who only shares info when given permission). Sometimes this just involves ‘market trading’ where an offer is carried from one room to another and then a counter offer is carried back until an agreement is made. Sometimes it involves both parties being more creative and finding solutions where they both can get some benefit.
S.E.N.D. Mediation
There may be a dispute between a parent and a Local Education Authority about the provision that has been put in place for a child. Perhaps the LEA has refused to do an assessment of the child’s needs, or the parent disagrees with the outcome of the assessment or that despite the assessment the provision is not adequate. In all of these cases the parent has a right to go to a tribunal. Similar to going to court in a legal dispute however this is time consuming, expensive and can be stressful. LEA’s encourage mediation in the first place and will pay to have it provided. In this case the mediator sets up a meeting between the parent/guardian and the Special Educational Needs Coordinator to look at the specific case. Often things which have not been noticed or spoken about can be heard and it is a chance for the parent and SENCO to see if there is any movement possible in the decision that has been made. Sessions tend to be about 2 hours long. In the first place it is worth getting in touch with your local council to find out about their route to mediation.
Community Mediation
This covers issues which are unlikely to lead to litigation but still cause problems and stress for both parties and could lead to more serious consequences if not dealt with. A dispute between neighbours over noise or behaviour for example. This type of mediation is often offered through housing associations or landlords. The mediator offers a calm and considered process which is the same for all parties and where all parties are given the chance to speak as well as to listen, not just to the problem but to the way that the problem affects them. In this way they can come to a deeper understanding of how reasons that people are behaving in a particular way and have some empathy. They are then able to mutually find ways to resolve the issues.
What level of confidentiality is required?
All people present at the mediation sign a confidentiality agreement before the event. When the mediator talks privately to each party separately they can be completely candid and honest because they know that nothing they say will be shared with the other party or anyone else unless they give permission for the mediator to share. As soon as the mediation is over the mediator destroys all of their notes etc. Neither party can ask the mediator to talk about what was discussed or said at the mediation. The only thing that will remain from the mediation event may be a written settlement agreed and signed by both parties about the solution arrived at.
How should one prepare for mediation?
The key thing is that you have to be ready to change, and not have a mind-set about ‘winning’. Think about getting a settlement that you can be happy with because it beats the alternative (many years of stress, worry, financial uncertainty etc. without any guarantee of a positive outcome. It is sometimes a good idea to do some homework preparation (getting dates in order, working out figures and costs etc.), the mediator will advise on what you can do to prepare.
