d to be voluntary – but what does that imply?
It means that although you should try to use mediation positively and in good faith, if you really think it is not getting anywhere you can ask for it to be terminated. The other side can do the same. So it is not obligatory to reach an outcome agreed by all parties, and you should not feel pressurised to compromise against your better judgement.
How successful is mediation?
In a word – very. Most mediation provider bodies that have conducted research on the success ratio of mediation quote an approximately 80% chance of success. The reason for this is that when parties are in a situation where they all feel empowered to negotiate effectively, and achieve their needs, they generally do not fail to do so. Mediation provides that empowerment.
Must I mediate if the other side proposes it?
Not unless the parties have been ordered by a court to attempt mediation, or unless they are under a contractual requirement to do so. Even then, provided they approach the mediation in good faith and with a genuine intent to make it successful, they can decide to discontinue the mediation.
How should I prepare for a mediation?
If you are legally represented, and wish your counsel to be present at the mediation, you will be guided by counsel. Whether legal counsel will be present or not, mediation is a collaborative solution generating attempt rather than an opportunity to score points against the other side. That is not to say that all parties should not have the opportunity to state their case, argue their positions and vent their feelings – these can be important and cathartic. The key thing to remember is to come to the mediation after preparing well and deciding what you need as a bare minimum. And don’t treat the mediator as an opponent or a tool to represent you – you need to trust the mediator, knowing that anything you say in confidence will be kept in confidence unless or until you allow the mediator to disclose it. Watch a mediation video.
How do I find the right mediator?
Start by reading The Right Mediator: How Do You Know? Then go to the Decision Tree and follow the links. This involves considering whether the situation requires a mediator skilled in a particular practice area (or more than one), what mediation style is needed, language and cultural skills, location, and whether an administered or non-administered process is preferred. Remember, the other side may have views on all or any of these things. You can then key in your preferences on these aspects at the IMI Search Engine. If this generates an insufficient number of choices, consider changing the preferences. After that, seek recommendations from counsel or visit the websites of one or more of the mediation providers. Read the answer to Q4.
What do I have to lose?
Nothing, with the exception of a little time and a modest shared cost.
How long will a mediation take?
Most mediations take under 2 days. See Q5.
Who should participate in a mediation?
That depends on the circumstances and your preferences. Mediation is assisted negotiation and you are your own negotiator. If you are accompanied by counsel, make sure your counsel comes to the mediation as a collaborative solution provider first, as your adviser second, and as your advocate third – depending on how the mediation goes.
Why use a mediator to negotiate a deal when there is no dispute?
The settlement of a dispute is just a deal. Although mediation has traditionally been used for resolving disputes because it is particularly helpful in managing the hostilities between parties that typically characterise disputes, mediation has far wider values in terms of enabling negotiators to do their job on a collaborative rather than confrontational or positional basis. See Q1 and IMI’s materials on deal mediation.
When should I mediate?
As a generality, the earlier the better. If there is a dispute, tensions tend to escalate over time, making settlement harder to achieve the longer a negotiation is delayed. Where there is no dispute, agreements can be harder to achieve once parties become entrenched in their positions and would lose face, or suffer other consequences, to reverse claims and statements made earlier. Avoiding problems is generally easier to achieve than resolving them after they have arisen. Having said that, there are situations where facts need to crystallise before a useful negotiation can take place. As the Greek poet Hesiod wrote in Works and Days in 660BC – Timing is in all things the most important factor.
Should I insert a mediation clause into a contract?
Without hesitation, yes. This makes it much easier for the parties to mediate early, before litigating, and avoides any weakness perception in proposing mediation. IMI has provided guidance on model mediation clauses.
How confidential is a mediation?
Except is extreme cases (such as criminal illegalities or specific requirements of law and legal process) information disclosed to mediators must be kept confidential by mediators and their Codes of Conduct bind them to that commitment.
What are the different kinds or types of mediation?
There are three main mediation styles – facilitative, evaluative and transformative. See IMI’s information on mediation styles. There are also hybrids of mediation and other processes to consider.
Why are some people very reluctant to mediate?
The most likely reason is lack of familiarity, and a preference to stick with their comfort zone of doing things they way they have been done before. Some lawyers are reluctant to advise their clients to engage in mediation for a variety of reasons. Overcoming these blockages requires some persistence.