Mediation is useful in all relationships, Whether they be in a marriage, at work, in sports between businesses, children/parents, nations, union/management, developer/environmentalists, employer/employee, two employees, two businesses, or whatever conflict may arise... Sometimes the conflict is resolved by a simple compromise. In other times it is resolved by a win/lose outcome and in some occasions, it is resolved by agreement. In times past, most disputes were resolved by physical combat. As society became more "civilized", disputes were resolved by the monarch king or chancellor. Today, many disputes result in saying, "I'll see you in court."
The legal system has been a dispute resolution medium in our society for much of recorded history. Resolving disputes through the courts can often take a long time, cost a lot of money, create a lot of public attention, and does not maintain goodwill between the parties. There is a losing party and more often than not, the wining party is not satisfied and feels as if they lost. There is an alternative-mediation.
What is Mediation?
Mediation is an intervention into a dispute of an acceptable, impartial, neutral party known as a mediator who assists the parties to reach their own mutually acceptable agreement to the matter in dispute.
Mediation is Communication
For mediation to occur, the parties must begin to communicate. Labour and management must be willing to talk, governments and public interest groups must have a forum for dialogue. Families must be willing to begin face to face dialogue. Often when a dispute has arisen, communication between people has broken down or disputants feel that the existing communication is not effective. The mediator is specially trained to facilitate and improve communication between parties to a dispute.
A mediator is an acceptable intervenor. Acceptability refers to the willingness of the parties in dispute to allow an intervenor to assist them to reach a resolution. The thinking behind and involving an intervenor is a conflict is that the intervenor will be able to alter the power and/or dynamics of the conflict relationship. This is done by influencing legal beliefs or behavior of the individual parties by providing knowledge or information or providing a more effective way to communicate and thereby help the parties to settle the issues in dispute. Even the mere presence of a party who is independent to the parties in dispute has been found to be significant in resolving the dispute.
Impartiality and Neutrality
Impartiality means the mediator has an unbiased opinion and is not influenced by any preconceived preference in favor or prejudice against one of the parties. Neutrality refers to the behavior or relationship between the mediator and the parties in dispute. The mediator does not personally expect to gain any benefit or special payment from one or the other party. Compensation for the mediator does not depend on the result. Being impartial and neutral does not mean that the mediator does not have a personal opinion regarding the outcome of what is in dispute but the mediator is trained to put aside his or her personal opinion and of focus on ways to help the parties make their own decision.
No Binding Power
A Mediator is different from a judge or an arbitrator. A judge or an arbitrator like an umpire in a ball game "calls them the way he/she sees them" and the decisions is final. The mediator, on the other hand, works to reconcile people's different and competing interests. The mediator's goal is to assist the parties to look at their concerns, examine their needs, and examine the needs and concerns of the other party such that an exchange of promises that will be mutually satisfactory results.
A Voluntary Process
Parties are not forced to meet with the mediator. They must choose to meet of their own free will. They are free to leave mediation at any time and are not forced to agree to anything unless they want to. Attempting mediation does not mean that one is forced to settle.
A key feature of mediation is that everything that is said or happens with the mediator is confidential. If the parties agree, the settlement that results need not be confidential. If the parties do not reach a settlement, then they are free to resolve the dispute through the Courts without the threat of what was said or done in the mediation being used against them. In other words, what happens in mediation is without prejudice to the rights of the parties.
Mediation is generally less expensive in terms of dollars when compared to Court action. Rapid settlements. If may take along time to get to Court and a long time for the decision after the trial. The decision at trial may be appealed. The decision at the Appeal Court may be again appealed to a higher Court. A dispute resolved in mediation allows the parties to get on with the business of their lives.
Mutually Satisfactory Outcomes
People ore generally more satisfied with solutions that they work on and create themselves and which they mutually agree to. People are less satisfied with decisions imposed on them by an outsider such as a judge, commissioner, arbitrator, and so on.
High Rate of Compliance
Parties who reach their own agreement are generally more likely to follow through with the promises they made. The statistics show that maintenance payments for child support are made more often through agreements than through decisions imposed by a court.
Mediation settlements can address legal and non legal issues. The parties can tailor their agreement to their particular situation. Brainstorming is not part of the judicial decision making process. In mediation, parties can use problem solving techniques.
Control and Predictability
In mediation, the parties have control of the process and the outcome is more predictable. If they are not happy with the settlement, they do not need to agree to it. neither the other party nor the mediator can impose and agreement.
People who speak for themselves in a controlled setting often feel more powerful than those who use advocates such as lawyers and agents to represent the.. Participants use plain language that they are comfortable with rather than legal mumbo jumbo.
Preserving Ongoing Relationships or Terminating Relationships More Amicably
A mediated settlement often preserves a working relationship in ways that would not be possible in a win/lose decision. Mediation can also make the termination of the relationship more amicable.
Mediation is Developing as an Alternate Dispute Resolution Method
In Saskatchewan, the Law Society has a list of approved Mediators.
Per: John Benesh: "mediator approved by the Law Society of Saskatchewan"