I’ve been a commercial mediator for over twenty years and the vast majority (probably over 80% in that period) of the cases I mediated have settled. This is not personal bragging as most mediators would quote the same settlement rate. It just demonstrates that, when parties in dispute take control of the situation, deals happen. They happen for a variety of reasons, the most common being that they just want to end the misery of conflict and get on with life. Which is one of the many benefits of mediation – settlement brings finality. Tomorrow is a new day.
Mediation returns power to the parties. The settlement is their decision, there is no deal unless all parties say ‘Yes”. But in adjudicated cases – court, arbitration, adjudication, expert determination, where a third party imposes a decision – the parties have no say in the outcome. The third party decides who wins (and therefore who loses) and the parties are lumbered with the outcome. But life is not like that; it is not all black or all white, but many shades (more than 50!) in between. People see the same facts and events through different eyes and interpret them differently for a whole load of reasons – education, age, ethnicity, community, politics, wealth, gender and so on. This doesn’t necessarily mean that they are any more right or wrong, just different. So a third party, no matter how scrupulously independent they may be, has to ignore this reality and can only decide who wins and who loses. That is not justice.
Mediation is a process where an independent third party helps the parties in dispute to negotiate a settlement. Once that settlement is in writing and the parties have signed, it is binding as any contract. However, up to that moment the parties are not committed to anything other than to negotiate in good faith, so the mediation process is both flexible and safe. In the rare event of a settlement not being achieved, nothing said or produced in the mediation can be used in further proceedings. Everything is confidential (so long as it is legal) and without prejudice.
When a party has a dispute the first step is usually to try to negotiate an outcome with the other party. If that is not possible, or doesn’t succeed, the claimant usually consults a solicitor (one day the first thought will be to involve a mediator but I suspect that is still many years away!). The party hands control of the dispute to the solicitor and the problem now becomes a legal matter, framed in legal language. Time and cost march on and settlement seems to get no closer. Often frustration and misery take over.
Mediation changes that. Although the solicitors have an important role in mediation, they become supporters and advisors. The party becomes the centre of the process – they can tell their story, negotiate the deal (or not) and walk away with dignity. That is justice!