What is Alternative Dispute Resolution & Mediation?
John M. Lynch on Mediation & ADR
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Last week Melanie began our 2012 review with the DePuy ASR Hip Implant Recall and G v. G. Today I will review another key 2012 topic – mediation.
What does Alternative Dispute Resolution mean?
Before going down the court route, ADR (Alternative Dispute Resolution) should be considered. Basically, alternative dispute resolution is an alternative to litigation / court.
In sensitive matters – in either business or personal life – ADR does not add to the conflict in question, where a Court situation can. It is a less stressful method for the individuals who are already involved in stressful situation.
There are many forms of ADR:
- Structured Negotiation
- Collaborative Law
- Mediation
- Arbitration
We will now look at Mediation.
What is Mediation?
Mediation is a swift, cost efficient method of dispute resolution. It is based on the principle that people can resolve their own disagreements if given the right encouragement. Mediation is a non-adversarial method of dispute resolution, one which facilitates the wishes of all parties involved in order to produce an appropriate result.
What is a Mediator?
A mediator is not the decision maker but an independent, third party to the process.
The function of a mediator is to facilitate a resolution between the parties.
A mediator does not judge who is right or who is wrong, but works with parties to help them arrive at a solution to satisfy their interests.
The mediator in a case will always remain impartial and act for all parties objectively.
I am an Accredited Mediator and I often meet with people who are in dispute. My function at Mediations is to help an agreement between the parties, not to decide the outcome for them. There can be two separate rooms for the parties and if they are working well they can be brought together to deal with their dispute in a civil way.
One of the advantages of mediation is that the decisions are made by the parties themselves and this gives the parties much more flexibility than a court hearing.
Why choose Mediation?
Mediation provides a confidential, quicker, more cost effective and more satisfactory outcome than going to Court. An outcome can be achieved in the course of a DAY! It may take months and sometimes years to resolve a disagreement in court, whereas mediation can be paced according to the parties’ needs and schedule.
Mediation is voluntary and requires both parties agreement to the make a final resolution. In mediation, the parties are able to customise the resolution agreement to meet their needs rather than being constrained by the limited options available in court. Most importantly, parties are more likely to preserve an amicable relationship in the future, particularly because of the confidentiality of mediation.
Why is Mediation more useful now than previously?
Mediation is a process that can be adapted to suit any given situation where difficulties need to be resolved.
It can be used to head off a dispute before it starts or to resolve a dispute that has already started.
As litigation is not the most suitable route for all of these parties, mediation is an important alternative in resolving disputes
It takes less time, costs less money and the parties are more likely to be able to solve the problem in a way that lasts and is more satisfying.
As mentioned previously mediation is not confined to family law situations and can be used in a variety of dispute situations such as workplace or business conflicts.
At Lynch Solicitors we always encourage, where possible and in the best interests of all concerned, taking a route which saves both the expense and stress involved in contentious litigation.
What is a structured negotiation?
What the structured negotiation process seeks to do is to establish ground rules for negotiation so that people are clear about what they can expect from the process and also what is expected of them. It differs from collaborative law / practice in that the lawyer doesn’t make a commitment not to go court on behalf of the client and also the four way meetings that are a central part of the collaborative process are an optional part of the structured negotiation process. Structured Negotiation is very similar to the collaborative law model without the need to agree to discharge our services to our client if negotiations break down and we have to resort to litigation/court.
How does collaborative law differ from mediation?
With collaborative law both parties to the dispute have separate specifically trained solicitors whose only task is to help the parties to resolve the disagreements that they have. Each of the parties must have a solicitor who is committed to the ideals of collaborative law. The people are at the centre of the process and actively involved in the negotiating process. It differs from mediation because each of the parties is represented by their lawyer rather than choosing another party to act as go-between. Negotiations take place in a number of four way settlement meetings that are attended by both clients and solicitors. The number of meetings required differs with each situation, depending on how complex the issues are. The agenda for each meeting is agreed between the clients and solicitors beforehand. Each solicitor is there to guide their clients towards a reasonable resolution. The aim of collaborative law is that as amicable a solution as possible is sought, reducing the legal expense and court time. All people in a Collaborative Law case undertake to be absolutely truthful with each other about the finances. Collaborative law is not suited to everyone who is involved in a dispute; a degree of trust is necessary and the parties must have a reasonably civil relationship.
What is Arbitration?
Arbitration is an option which is built into most legal agreements. Its main advantages to Court are speed, cost and confidentiality. As it is a more inexpensive, speedy and confidential method it is a model of dispute resolution that we recommend to our clients and offer a special expertise. It also carries with it the benefit of confidentiality. For many years the system of arbitration has been a popular method of dispute resolution for building contracts and consumer contracts such as holiday packages and motor vehicle purchases. Instead of going to Court, the parties can agree to present their case to an arbitrator who will rule on the dispute. I am also an Arbitrator. Unlike with Mediation, when I am an Arbitrator in a dispute I decide the outcome. The main advantage of Arbitration is that it is in private, takes less time and is less expensive than Court. It is, by and large, binding on the parties and can be enforced through the courts.
Conciliation, like arbitrations, is an option which is built into most building contract legal agreements. Its main advantages to Court are speed, cost and confidentiality. As it is a more inexpensive, speedy and confidential method it is a model of dispute resolution that we recommend to our clients and offer a special expertise. It also carries with it the benefit of confidentiality. Instead of going to Court, the parties can agree to present their case to an conciliator who will commonly offer a recommendation to the parties having a full investigations and presentation by the parties. It can sometime combine mediation and an arbitration approach – many issues can be mediated or agreed by the parties and those issues that cannot be the subject matter of a recommendation by the Conciliator. The only drawback of conciliation is that it is not binding on the parties and if unsuccessful you need to proceed to Arbitration.
