Mediation Flashcards
Definition of mediation
Mediation by definition is an interaction between two or more disputing parties and involves a third party neutral, the mediator
Role of the mediator
To facilitate communication between the parties and avoid misunderstandings
Transform the process from competitive to cooperative
Very different to a third party in litigation & arbitration
To help the parties to arrive to a mutually acceptable solution but never to force the parties to come to a resolution to a dispute
Never a binding decision
To organise the process
To remind the parties of the ground rules
Is a mediation confidential?
Yes, anything you say in a mediation meeting will stay within that meeting
Discuss “without prejudice” rule
Whatever you say cannot be used later in evidence. In mediation, not only statements but documentary evidence exchanged during mediation are all covered by this rule
What are the 3 kinds of mediation
Facilitative
Evaluative
Transformative
Facilitative
Most common type of mediation.
Mediator helps the parties find a mutually acceptable solution by helping them identify common interests.
Mediator does not make recommendations to the parties or give an opinion as to the best outcome or what the court’s attitude might be.
Mediators often are not experts in the area in which they are helping the parties solve the dispute.
Most firmly held belief is that it is the parties task and mission to find the solution, to explore all the options, to explore all the hitches, and the mediators work only concerns the process - this means they don’t make any recommendation, opinion or views on the outcome or possible outcome if it went to litigation. What it does instead is keep an eye on the process, follows what is happening, focus on the ground rules.
They also make sure everyone in the room have some place to be there - everyone who is empowered to make a decision on the parties behalf is there, so that the party can’t use stalling tactics.
Must also establish the routine - set the meeting, set the ground rules, allow both parties to make their statements, allow them both to discuss the statements with each other, then you explore the options, pick the ones they will like, discuss them, them hopefully arrive to some kind of settlement, write it down, make it a binding agreement.
Evaluative
Mediator more concerned with the legal rights than feelings and interests of parties.
Concerned with what a judge is likely to do if parties don’t settle.
Not much different than the facilitative model in terms of the procedural aspects.
A mediator has to be specialist in the area which the dispute is concerned - it works best when the mediator has the respect of the parties and the parties trust that whatever the mediator tells them about the possible outcomes of the dispute is correct.
In respect the model works more as a forecasting device.
Transformative
Based on empowerment of each of the parties and recognition by each of the parties, of the other parties’ needs, interests, values and points of view.
The mediators’ goal is to help the parties identify opportunities for empowerment and recognition to change their interaction from destructive to constructive.
This is a relatively new form of mediation.
The idea is that when you hear what the other party has to say you might change your perspective, change your idea of what you want to happen, might change how you perceive your opponent and the situation.
Less of a focus on settlement.
Outcome of mediation
Outcome is flexible.
Written and signed by both parties.
Enforceable as a contract through the courts.
There is a much wider group of remedies available than there is with litigation - apologies, changes in behaviour, preferences etc.
Conciliation
Similar to mediation.
You don’t get to choose your mediator - it will be someone appointed by the government or by a commission, some public official.
It is more inquisitorial - job is to investigate the matter more and to propose some sort of solution in the end.
In all other respects it is just like mediation - third party neutral, all the same tricks and procedure, non-mandatory, the outcome is only binding if it is agreed by both parties.
ACAS
You have to attempt an early conciliation with ACAS before going to an employment tribunal - has become mandatory built into the court system.
They will attempt a conciliation or mediation procedure with them.
Two outcomes
- can settle
- if they don’t settle ACAS will produce a certificate with a unique ID number which has to be presented to the employment tribunal
Types of disputes that are suitable for mediation
Housing issues Small claims Boundary disputes Employment disputes Personal injury and negligence claims Community disputes
Types of disputes unsuitable for mediation
Large commercial disputes
Urgency/personal safety
Basic mediation techniques
Active listening Appropriate questioning Reiterating Reframing Rephrasing Summarising
