Mediation is a process of dispute resolution which encourages the parties in a dispute to isolate the issues, to develop possible settlement options, and to negotiate a resolution which is acceptable to them. Instead of having a judge, magistrate or arbitrator impose a decision, an impartial person, the mediator, facilitates the process and, if the dispute is resolved to the parties’ satisfaction, the mediator helps the parties to set out their resolution in the form of a written agreement called “Consent Orders” which can then become legally enforceable. In Mediation the parties never hand over the power to make decisions to anyone else, they are in charge of the decisions they make unlike Court where the judge makes the decision. The mediator cannot make or impose decisions on the parties. Settlement occurs only if the parties agree.
Although both Mediation and “without prejudice” settlement negotiations are ways of resolving legal disputes, Mediation differs from “without prejudice” settlement discussions in the following ways:
- Mediation provides a way for parties to resolve their disputes by focussing on their interests and concerns. On the other hand, “without prejudice” settlement negotiations are concerned with reaching a compromise based on legal rights and obligations.
- Mediation requires the parties to meet face-to-face rather than leaving them to communicate via their legal representatives. This allows all areas of concern to the parties to be dealt with and helps keep the problem in the control of the parties.
- Independent mediators help the parties to identify precisely what the issues are between them and encourage them to resolve these. Having an impartial person taking part in the dispute.
