What is Mediation?

Mediation is the most popular and widely recognised form of ADR, both nationally and internationally. It employs negotiation techniques to their fullest and offers solutions beyond those that a Court could ordinarily impose. The terms mediation and ADR are often used interchangeably.

Mediation can be defined as a voluntary, non-binding, "without prejudice" method of resolving disputes. The mediator is specifically trained to assist parties in settling disputes, being an impartial neutral catalyst who helps the parties to arrive at a mutually agreed solution. The mediator has no power to impose a settlement on either party.

The vast majority of disputes will be settled by negotiation, either by the parties themselves or through their instructed legal representatives. However, where direct negotiation has failed and the parties are in deadlock, mediation offers the opportunity for the parties to move into a third dimension – through the professional assistance of a mediator.

In the life cycle of a dispute, mediation can fit in at virtually any stage.
Unlike court proceedings, mediation involves the direct participation of the parties, who often work alongside instructed legal representatives on a proactive and creative basis.

The role and function of the mediator is not to determine the issues but to assist the parties in identifying issues and information needs, reducing obstacles to communication, exploring alternatives and focusing on the needs and interests of those most affected by the dispute. The objective of the mediation process is to help the parties visualise alternative solutions and the mediator is tasked with guiding the parties to areas of common ground.

Throughout the process, decision making rests with the parties in dispute. The mediator is simply a catalyst who assists the parties to reach that decision making phase.

Some cases are inherently not suited to settlement and in these instances the determinative process of a Court decision is the only alternative. Should mediation fail, the process is not wasted as it serves as a useful way of collecting information and forming the underlying case in dispute.