ADR - Mediation Flashcards
What are the positives for mediation?
Cheap
Reflects interests of parties
Preserves relationships
Legal agreement binding if reached
What are the negatives for mediation?
Not legally binding if no agreement reached
Not useful where parties are entrenched
Too informal
Imbalance of power
Cheap - why is it a positive - P-DEV-E
The average cost of mediation is £400 – this is much cheaper than going to court, and therefore less of a burden on the finances of the parties.
However if mediation doesn’t work, parties may still need to go to court – so this may end up an additional cost in the long run
Reflects interests of parties - why is it a positive - P-DEV-E
The process of mediation focuses on the needs and wishes of the parties and in helping them to communicate this to one another. This makes the process equal and fair and gives the parties outcomes that work for them.
Also, as the process is voluntary it means that parties are more likely to engage with it if they gave agreed to take part, therefore further helping to resolve their disputes in an agreeable way.
Preserves relationships - why is it a positive - P-DEV-E
Because mediation helps to open channels of communication between parties, it can help to create a better future relationship for the parties, which is especially important for families/businesses/colleagues going forwards.
However not all mediation is successful – sometimes parties will still refuse to cooperate with one another and find common ground, so the issues will still remain.
Legal agreement binding if reached - why is it a positive - P-DEV-E
If parties reach an agreement that they are happy, they can make this legally binding and this will therefore be enforceable by the courts under contract law, which provides certainty to the parties involved.
Additionally, if parties are unable to come to such an agreement, they can retain the right to go to court to ask them to resolve the issue and create an order for them.
Not legally binding if no agreement is reached - why is it a negative - P-DEV-E
If parties are unable to communicate with one another, they will not be able to reach an agreement and will be left without having made any progress – and may still need to go to court. This makes the mediation process worthless.
Additionally, even if an agreement is reached, it will usually need to be drawn up by a lawyer, and the cost of this can take away from the benefit of using ADR originally
Not useful where parties are entrenched - why is it a negative - P-DEV-E
If parties are not willing to engage with the process or to compromise on a middle ground, there is nowhere to go as mediators cannot suggest solutions. This will leave parties without a resolution to their issue.
However there is usually some compromise that can be drawn where the other option is the threat of a court order, which will see one party getting none of their wishes at all.
Too informal - why is it a negative - P-DEV-E
The process is seen as very informal and this may lead parties to not take process seriously, which will result in outcome which are either unsuitable, or no outcome at all. This renders the process worthless.
However, the informal nature of mediation can be a comfort to parties who want to avoid the confrontational nature of the courtroom, and may encourage better communication.
Imbalance of power - why is it a negative - P-DEV-E
Sometimes the parties may be imbalanced in terms of their communicative powers, and this can lead to a ‘stronger’ party who may bully or manipulate a ‘weaker’ party. This is especially concerning in family law cases where there may be a history of control.
However the mediator is present to facilitate discussions, and the parties can be located in separate rooms to avoid having to face one another, with the mediator acting as a messenger. This can be better for some than facing the party in court.
