Mediation is a process in which a neutral third party facilitates a conversation between parties in dispute, either at a joint meeting or by meeting privately with the individuals, to help them to find a mutually acceptable resolution.
All parties agree to this strict code. The meetings themselves are confidential and any terms agreed are confidential unless the parties agree otherwise;
which means the discussions can’t be referred to in any subsequent proceedings;
you can’t be forced into mediation, you can’t be forced to say anything during the mediation, and you can leave the process at any time;
the mediator will not adjudicate the case, nor decide who’s right or wrong, nor advise on legal merits;
mediation isn’t interested in why people did this or that; instead it is interested in what the effect of these actions were on the parties themselves and on others;
if you want to know who has the better story, ask someone on your own side – they’ll tell you what you want to hear. The mediator remains impartial;
the process is ultimately less concerned with what happened than it is with what is going to happen next;
the parties mutually agree the outcome and therefore have much more scope and flexibility than is available to a judge or arbitrator, fitting the solution much more closely to the parties’ needs and desires;
Non-binding until the point of settlement
don’t be afraid to make suggestions, nothing sticks until you come to the end. A civil and commercial mediation usually results in a binding agreement. Most workplace mediations result in a non-binding statement of intention, though there is no reason terms cannot be made binding, if the parties choose;
or, as I prefer to term it, what you can live with/what you can live with. If one party wins everything, it usually follows that the other party gets less of what they want. No one agrees to anything in a mediation, except voluntarily.
Having worked in the law for a number of years, observing up close the effect that litigation in discrimination, equal pay, unfair dismissal, personal injury, contract claims and the rest has on people, even when they won their cases, I grow daily more convinced that mediation is the future. Mediation works on a practical, and perhaps as importantly, a human level.
Hear me talking with Joshua Rozenberg about mediation on Law In Action, BBC Radio 4 October 2014: