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Mediation

While all the other systems should hopefully deliver settlement of the dispute, the individuals involved may still come away profoundly dissatisfied. I have seen this happen many times - the case is over, supposedly all settled, but one or sometimes all the parties are left with a bad taste. This is at least partly because they had little if any direct control over the process or the decision that was made "for them". And more often than not, one or more of them will consider this decision was "not fair" - another way of saying that their own views, convictions and understandings were not properly heard, acknowledged and taken into account.

Mediation has the advantage of offering more flexibility, and a great deal more control. Most especially, it does not necessarily reduce or limit the other options such as going to court. If you think of the dispute as a movie, with the final scenes to be played out in the court house, then mediation is like pressing the "pause" button: you can "take time out" from the formal process of litigation to try this alternative. If it works, all well and good, if not, press play again and roll on.....

However, there may be disputes where mediation is not the best method to adopt. There is little point in trying to mediate a dispute if one or more of the parties simply has no room to give. For example, if dealing with a government department that has severe regulatory restraints.

In other cases, the mediator may not have the skills or experience to assist the parties to deal which whatever power imbalances may exist. All trained and accredited mediators are taught to carefully assess any dispute which is brought to them, before agreeing to mediate.

However, many if not most disputes are suited to resolution via mediation. These can be disputes arising during the dissolution of a relationship, construction and employment disputes, and neighbourhood / community disputes.

If you think there is any chance the party you are in dispute with could be made to "see sense" then mediation may be appropriate. Actually, even if you think they are completely hopeless, totally unreasonable and utterly unable to see anyone else's point of view - you might be surprised at how things can change in a mediation. The first step is for you to talk to the mediator, to give them enough information to enable them to form a preliminary view as to if this dispute is suitable for mediation. Assuming the mediator decides it is worth exploring further, (s)he will then talk to the other party - or parties.

For example, I usually try to meet with each party separately before any joint session and listen to everything each person wants to say about the dispute, without judgment. It is hugely important to understand that the mediator does not take sides, or make decisions. The aim is for the parties to be able to both talk to and listen to each other fully - perhaps for the first time - in a safe and secure environment.

Here is a typical "Agreement to mediate" - what the parties to the agreement sign before starting.

 

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