Mediation

The attempt to settle a legal dispute through active participation of a third party.

Mediation is the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. It is a voluntary and confidential form of alternative dispute resolution.

Mediation differs from arbitration, in which the third party (arbitrator) acts much like a judge in an out-of-court, less formal setting but does not actively participate in the discussion.

Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation) and separating couples will be expected to try to sort their problems out using mediation before going to court.

Mediation has become more frequent in contract and civil damage cases. There are professional mediators or lawyers who do some mediation for substantial fees, but the financial cost is less than fighting the matter out in court and may achieve early settlement and an end to anxiety. However, mediation does not always result in a settlement.

With mediation a neutral third party is used as a facilitator to help the parties find a possible resolution to their dispute.  A mediator does not give opinions on the merits of either side’s case.  Their role is to ask questions of both parties in the hope that this will reveal the underlying problems. The mediator will try to assist the parties to understand the issues and will be seeking common ground and sounding out the  options and positions available to each party.  They will act as a go between to communicate offers between the parties.

A feature of mediation is that there is an assumption that the parties are willing to reach a compromise.  Whereas court proceedings are usually about winning and not losing, this is not the purpose of mediation. The focus of mediation is to come to a common sense settlement which is agreeable to both parties in a case.


Mediation is flexible as there are various forms and the parties are in control and make the decisions.  This is not the case with legal proceedings where legal professionals and judges take control and participate and influence decisions.

Proposals made in mediation do not constitute binding agreements but a solicitor can draft a binding agreement.

If the parties can not reach an agreement, they can still go to court. Details about what happened during mediation will not be disclosed or used if the issue is taken to court.

 

What is Mediation? - Civil Mediation Council

Mediation by telephone aims to speed up small claims - The Guar

Mediation - Alternatives to court - Resolution - first for family law

Acas - Mediation

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