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them, but uses certain procedures, techniques and skills to help them to negotiate an agreed resolution on their dispute without litigation.
Mary Welsh defined mediation as distinguished from negotiation by the involvement of the mediator, and from arbitration in which the dispute is settled by terms imposed by the Arbitrator.
The term “mediation” has tended to be used interchangeably with “conciliation” in commercial Alternative Dispute Resolution (ADR), though “mediation” has become the preferred term.
Sometimes mediation is understood to involve a process in which the mediator is more proactive and evaluate than in conciliation, but sometimes the reverse usage is employed.
This describes concilation as a process in which the conciliator plays a proactive role to bring about a settlement and mediation as a more positive process than conciliation. Unlike in arbitration, the neutral third party in mediation does not have any authority to make any decision for the parties, nor is that the mediator’s role or functions.
Where the mediator expresses a view about the merits of the dispute, this would only be a non-binding opinion and in no circumstances would a mediator have the power to impose this view on the parties.
Indeed, any such power would be contrary to the spirit of mediation, which is intrinsically consensual.
Mediation does not have a consistent uniform procedure, but it comes in the different models covering various fields of activities which are unique in their own right, each with its own tradition, etho and culture, that is in business, politics and other social spheres.
Thus, a mediator practicing in the commercial arena may adopt different procedures and have different views and approaches from the mediator working with political and social disputes.
Both may differ from labour mediation or divorce mediation. Nevertheless, certain fundamental principles and core skills run through all these diverse forms of mediation.
Where both parties are willing to cooperate, mediation may be a desirable way of settling a dispute.
The intervention of an independent third party may cause the parties to take a fresh look at the dispute and lead to settlement where negotiation has in the first instance been unyielding.
Proceeding by mediation may avoid the unforeseeability of a court decision or arbitral award if it is successful. Where parties desire to settle their dispute without the need for litigation or arbitration formalism, mediation is quicker and more informal and flexible as compared to adversarial proceedings.
Mediation is likely to be cheaper than adversarial proceedings since only one mediator is desirable and no elaborate submissions or even viva voce evidence is required. This is however not meant to say that submissions or evidence is not led in mediation.
In Jensen versus Cavalos, a professor who mediated the parties’ dispute was called on to testify in court.
He stated that during mediation, he met both parties who, in the presence of each other, had “agreed that the mediation be conducted by each party submitting points of argument in writing.
The parties also had the right to make oral submissions in expatiation or explanation of questions raised.” Unlike in adversarial proceedings, parties to a mediator may withdraw at any time.
Different from arbitration, mediation does not guarantee a final resolution of the dispute while, in certain jurisdictions where rules have been prescribed, the mediator, and possibly some of the evidence, may not be used in subsequent proceedings.
A party may take advantage of information received in the mediation process to improve his own case.
Parties may be reluctant to opt for mediation since an offer to mediate may be seen as a sign of weakness.
This arises from a report that one solicitor in the United Kingdom issues a press statement or notice under the headline “Mediation is for wimps.”
He is suggesting that in his experience, clients interpret a suggestion to resolve the matter via mediation as an admission of weakness.
Mediation brings in a neutral third party into dispute whose presence creates a new dynamic that does not exist when only the parties themselves or their representatives undertake direct negotiation.
The third party is some kind of shock absorber in that in side meeting he would tone down the message to the other party in case of the ready-to-fight parties.
Edward de Bono stated, in the introduction to his work that “in any dispute, the two opposing parties are logically incapable of designing a way out, there is a fundamental need for a third party role.”
A mediator is supposed to be impartial. He must have no interests in the outcome nor be associated or connected with any of the disputing parties in a way that would inhibit effective, even-handed intervention.
It is advisable that a person who has interests or relations with a party in mediation proceedings recuse themselves to avoid a potential case of bias against the other party. This factor is critical in the outcome of any mediation proceedings.
A mediator is not entitled to make a determination for the parties. If a mediator has authority to make any binding determination of the issues, that would be inconsistent with the notion of mediation.
Mediators may though make decisions in the exercise of their management function, which would not transgress this provision.
The mediator has no power or authority other than that given by the parties expressly or implicitly.
If any party decides to withdraw power and authority from the mediator, that ends the mediation.
If mediation is part of a court annexed procedure and the parties are compelled by the Court to enter into it, they should nevertheless have the freedom to end it with or without a resolution.
The only binding outcome of mediation is one on which all the parties agree. If parties are unable to reach agreementon the resolution of the dispute, they will be free to have their issue dealt with in the same forum.
Mediation has its primary objective the resolution of differences between the disputants bt negotiated agreement.
Professor Hazel Genn asserted that “the primary motivation for agreeing to mediate was the desire to end the litigation as quickly and cheaply as possible.”
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