Mediation and conflict resolution


Dispute Resolution

Mediation

Mediation is a decision making process in which the parties are assisted by an outside intervener, the mediator, who attempts to assist the parties in their process of decision-making; and reach an outcome to which each of them can assent; without the mediator having a binding decision-making capability”.  (Boulle, 2005)Mediation is a process that;

  • Is open
  • Needs a climate of trust and safety
  • Is empowering
  • Recognises disputants are responsible for their own dispute, its resolution and the future of their relationship
  • Avoids procedures that would infer blaming, judgement or coercion
  • Avoids setting parties against one another
  • Emphasises and demonstrates a cooperative approach to problem solving.

Mediation is based on a number of assumptions

  • The best decision-makers in a dispute are the parties themselves
  • Disputes are most effectively resolved on the basis of interests and needs rather than on the strict application of the law, or on the exercise of superior power.
  • To resolve a dispute, parties need to hear and understand each other through direct and constructive communication
  • A negotiated agreement is more likely to reflect needs and gain the commitment of the parties than a decision imposed from the outside
  • Mediators can assist by providing an environment and process for negotiation, enabling the parties to focus on the content of their dispute
  • Conflicts and disputes are a normal part of family and community life, not pathologies requiring a clinical treatment
  • People in dispute may need mediation AND other services, not mediation OR other services.  Mediation complements other approaches dealing with conflicts such as law enforcement, advocacy, Court, counselling or therapy.

Mediators do not

  • Play judge
  • Dwell on facts
  • Suggest or offer solutions
  • Counsel parties in dispute 
  • Give legal advice
  • Provide therapy
  • Assume Anything

Mediation is unsuitable where there is:

  • A current fear or high risk of violence
  • Bad faith bargaining
  • An unwillingness to negotiate
  • A lack of any negotiation power
  • An incapacity to negotiate 
  • Duress 
  • Overriding public interest

  Research about mediation generally shows that mediation does do what it says:

  • Agreement is reached in about 90% of cases
  • Mediation has a very high satisfaction rate compared to other dispute resolution procedures
  • Resolutions are usually robust
  • Mediated arrangements are usually more flexible and cooperative than Court Orders.
  • The suitability for mediation is not restricted to particular disputes – it works well in simple or complex disputes (indeed higher agreement rates occur where there are multiple issues)
  • An ability to mediate is not associated with academic qualifications or background
  • Mediation does not appear to disadvantage less powerful groups 

Mediation can be used in the following types of disputes:

• neighbourhood 

• family 

• separating couples

• Commercial 

• workplace 

This means savings in time, legal fees and court costs for you and the whole community. It also frees the court system to concentrate on problems that require determination by an outside party. 

Normally an agreement reached in mediation is not legally binding, but you can make it enforceable by law if you choose to. Mediation is also ‘privileged’. This means that nothing said during mediation can be used in a court of law.

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NEXT: What is Family Law Mediation?

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