Mediation is a formal process for using a third party, an external party to help resolve issues in a manner that may not be available within the strict sense of the law, these means that the parties are free to explore any and all possible ways to resolve the issue(s) at hand.
Mediation as a practice actually goes back thousands of years, while it now comes under the heading of alternative dispute resolution process it was actually one of the first dispute resolution processes, dating back to ancient Greeks debating practices to the feudal system, the key message here is that mediation is not dependent on a set of laws or requirements, it is driven by the interests of the parties and what they see as acceptable solutions to the issues that give both parties a win, mediation is therefore about a “win win” situation.
Mediations goes beyond external restrictions and helps two or more parties sit down and communicate effectively through or with the help of the mediator. The intent is not to assign blame but to adhere to a strict moral code. In philosophy, this idea is known as "natural law." In natural law, we move beyond courts and formal processes to do what is right for each person on an individual level.
When will Mediation Fail?
If one or more of the parties is looking for punitive damages or the ability to assign blame, mediation cannot help. The parties must be willing to negotiate and understand that a compromise will be required for success.
Mediation is a formal process of meetings between two or more parties with a desired outcome of a mutual agreement, as a general rule mediation is not legally binding, and the parties can walk away and stop the process at anytime without having any effect on their legal rights. The mediator acts as a facilitator in these meetings and in private sessions with the concerned parties, the mediator does not provide answers more helps the parties understand the issues at hand and looks to find a way forward. Within mediation the parties are commonly referred to as the complainant and the respondent.
The complainant is the individual who wishes to seek a resolution. The respondent is the second party against whom the dispute is being made, in law, this would be the individual "defending" the case being brought against him or her. The mediator is an unbiased, third party who can direct the proceedings with as little conflict and wasted resources as possible.
Mediation is generally a voluntary process, a collaborative process that focuses on the best outcome for all parties involved.
Within standard litigation the focus is often on one party wining, mediation is more of a “win win” solution.
For mediation to be successful it must be understood that:
Mediation is Voluntary. No party is forced to be there, and the process may be stopped at any time. No legal recourse will result should one party end the mediation before a conclusion has been reached.
Mediation is cooperative. Both parties must be willing to "give-and-take" so that the result is one that is in the best interest of everyone involved.
Mediation is Limited. In Judicial litigation the law can decide what a person may or may not do. In mediation, both the complainant and the respondent can refuse any part of the outcome and may in fact agree a solution that may not be possible within a Judicial setting.
Mediation is more Confidential. In mediation cases, there is no press coverage, cases don’t have to be reported and there is no public record of the case and any agreements from the case and no public information.
Mediation is formal.While mediation may not have all the strict rules as with the Judicial process, it is a formal process and has defined rules that must be followed. To this end, the mediator must respect certain rules, international mediation laws, and best practices to maintain formality.
Mediation is Fair. The best mediator is a fair impartial individual who can remain neutral and balanced throughout the entire process. Issues of ethics and confidentiality are key, and no one should feel pressured or coerced to give up any of their rights.
Mediation is Personal. No matter how formal and balanced the mediation process is, the issues at hand are often ones that affect people's lives in a major way, and the decisions they make are ultimately their own. An individual’s needs and desires can have a direct effect on the desired outcome, some outcomes can be a simple as an acknowledgment of the other persons needs and a mutual agreement to work together in a different manner.
The ultimate outcome from mediation is an agreement on the way forward, this agreement can be formalized into a legally binding document which would be filed with a court, thus providing legal recourse if a party breaches the agreement, however the desired approach would be a return to mediation, preferable with the same mediator, to understand why they have felt the need to change their position.