Mediation (ADR)

Question 1

What is mediation?

Answer 1

This is where a neutral mediator helps the parties to reach a compromise solution

Question 2

Why does a mediator consult with each party?

Answer 2

to see how much common ground there is between them

Question 3

What will a mediator explore?

Answer 3

They will explore the position with each party looking at their needs and carrying offers to and fro, maintaining confidentiality

Question 4

What will a mediator not do?

Answer 4

will not tell the parties his own views of the merits of the dispute as it is part of the job to be a facilitator

Question 5

Why is it apart of a mediators job to be a facilitator?

Answer 5

in order for an agreement to be reached by both parties fairly

Question 6

What will happen if a mediator is asked their opinion of the parties?

Answer 6

in this case, the mediation becomes more of an evaluation exercise which as well aims at ending the dispute

Question 7

When is mediation only suitable?

Answer 7

when the parties can cooperate

Question 8

Who are most likely to benefit from mediation?

Answer 8

companies who are used to negotiating contracts with each other are most likely to benefit from this approach

Question 9

What is the important point in mediation ?

Answer 9

the parties are in control, they make the decisions

Question 10

There is a more formal method of approaching mediation, a formalised settlement conference ,what does this involve?

Answer 10

a ‘mini trial’ where each side presents its case to a panel composed of a decision-making executive from each party and a neutral party

Question 11

what is involved in a mini trial?

Answer 11

each side presents its case to a panel composed of a decision-making executive from each party and a neutral party

Question 12

What happens after a mini trial at the formalised settlement conference ?

Answer 12

the executives, with the help of the neutral advisor will evaluate both positions and try to come to an agreement

Question 13

What happens if the two executives cannot agree after the mini trial at the formalised settlement conference?

Answer 13

the neutral advisor will act as a mediator between them

Question 14

What is a benefit of mediation at a formalised settlement conference even if the matter is not resolved?

Answer 14

the neutral advisor will act as a mediator between them

Question 15

What is one of the main mediation services? when was it set up ?

Answer 15

Centre for Dispute Resolution, set up in 1991

Question 16

What is an example of a mediation service which resolves disputes of smaller matters such as between neighbours?

Answer 16

Facilitative/Transformative mediation

Question 17

What does mediation avoid?

Answer 17

Mediation attempts to limit the issues and put them into proper perspective

Question 18

What is an advantage of mediation even if the matter is not resolved by this method as found? (2)

Answer 18

• The parties can fully express themselves in mediation
• The parties can preserve the relationship with one another
• After one conflict is settled, the parties might need to enter mediation again for another unrelated conflict
• Mediation is a less formal process, which allows the parties to feel more comfortable reaching a settlement regarding the conflict
• Mediation is confidential
• Mediation doesn’t provide punitive damages, which could be a benefit to both parties to prevent additional cos

Question 19

What is the disadvantage of mediation services?

Answer 19

No formal rules for the process

Lack of transparency

Question 20

What is a disadvantage of using mediation and then going to court if mediation does not work ?

Answer 20

When mediation is unsuccessful, it can make a court case more difficult, as one of the parties may have already used their best evidence, meaning the other party will know what to expect during the trial

Question 21

What could be a disadvantage with the mediator?

Answer 21

They could be biased

Question 22

What is a disadvantage of mediation in terms of the end result claims ?

Answer 22

Mediation does not always result in a settlement agreement.

Question 23

Identify two models of mediation and describe what the differences between them are

Answer 23

1. FACILITATIVE MEDIATION
   In facilitative mediation, any decision making is left to those involved, the mediator has no decision making authority.
2. EVALUATIVE MEDIATION
   Evaluative mediators are usually legal practitioners, often with an expertise in a particular area of law relevant to the conflict. They will provide the parties with an evaluation of the strengths and weaknesses of their case with respect to their legal positions.

Question 24

Describe three types of ADR processes

Answer 24

Mediation
arbitration
conciliation

Question 25

Constructive negotiators follow specific principles. Identify five of them

Answer 25

``` Gather your information. Build relationships. Know your BATNA and your opponents' BATNA. Listen. Take care of your target ```

Question 26

What are the Different types of mediation styles

Answer 26

• Facilitative mediation- where the parties are encouraged to negotiate based upon their needs and interests instead of their strict legal rights. • Settlement mediation- where parties are encouraged to compromise in order to settle the disputes between them. • Transformative mediation- where the parties are encouraged to deal with underlying causes of their problems with a view to repairing their relationship as the basis for settlement. • Evaluative mediation- where parties are encouraged to reach settlement according to their rights and entitlements withi