Purpose and Benefits
The role of a mediator is to facilitate productive dialogue to achieve dispute resolution. The goal is to empower each party to the dispute, alleviate the need for a trial and achieve a compromise.
Today, mediation is a well accepted processed use by parties in a dispute to save time, costs, emotional breadth and above all â€“ to eliminate risk associated with a judicial process.
Mr. Saling offers a tailored approach, empowering clients to determine the most effective route to reach their desired objectives.
The Advantage of Mediation:
Mediation has many advantages when compared to the traditional recourse to the court. In addition to being a joint undertaking, mediation is faster, less expensive, confidential and it promotes reconciliation between parties. This enables the latter to maintain harmonious relations and preserve their bond of trust.
Unlike a hearing before a court, the parties do not have to deal with the inevitable delays inherent in the judicial process since they set the pace for the meetings and the mediation schedule together with the mediator. As a result, mediation can take as little as a few weeks, even a few days.
Mediation is generally more economical than recourse to the courts, particularly since the parties save the costs of writing, submitting and serving notice of the proceedings needed for the legal proceedings, as well as several other costs inherent in the judicial settlement of a dispute.
Mediation is confidential. This means that, apart from the parties in question and the mediator, no one else knows the facts of the dispute, how the meetings are conducted, and the outcome of the mediation. Confidentiality remains a definite advantage, particularly in the business world.
Maintains the Relationship between the Parties
In mediation, it is not so much a matter of determining which party is right, but rather of finding an acceptable solution that satisfies both parties.
The mediator is responsible for establishing a positive climate that will encourage fruitful and constructive dialogue.
Unlike judicial recourse, where the focus is generally on the points on which the parties are opposed and where each party attempts to convince the judge about the rightness of their claims, mediation is a flexible process which tends to focus on the points on which the parties are in agreement and, above all, their respective needs.
In mediation, the parties do not have to convince the mediator that their respective positions are right. The solutions that are explored during the mediation process take both parties opinions into consideration and is intended to achieve mutual satisfaction
The Parties at the Center of the Mediation Process
Even if they are represented by an attorney or any other advisor, the parties retain control of the mediation process.
For his part, and in a constant effort to ensure balance and equity, the mediator must make sure that the parties understand the consequences of the agreements reached and the rights each party retains.
Mediation may be initiated:
Â· following a decision made by the parties;
Â· when a mediation clause provided in a contract is executed;
Â· as part of a judicial proceeding, with the agreement of the parties.
Following a decision made by the parties
When the parties are involved in a conflict, they can decide to submit their dispute to mediation and either choose the mediator together or call on the services of a specialized organization that can propose one.
Competent professionals who have been trained as mediators can be of great help in explaining the process and advantages of mediation.
When a mediation clause provided in a contract is executed
As it is often easier for the parties to include a mediation clause when drawing up a contract, it is strongly recommended that one be included at that time.
Applying a mediation clause that is already contained in a contract is a very popular way to initiate mediation. This type of clause enables the parties to submit any dispute arising out of the contract to mediation. In this type of clause, the parties agree to submit their disputes to mediation rather than to a court.
As part of a judicial proceeding with the agreement of the parties
The parties can turn to mediation even if they are already in court. Many Courts of have set up their own mediation service or the parties can agree to enter mediation with the full knowledge that if a settlement is not reached the parties may proceed with their pending court action. Any settlement discussions or any documents prepared in furtherance of the mediation process cannot be used by the parties in the judicial proceeding.
Choosing a mediator
It is important for the parties to agree on the choice of mediator. The mediator must have the experience and training required to conduct mediation properly but most of all, the mediator must be acceptable to both parties to the dispute.
Once the mediator has been chosen, the parties sign a mediation agreement with him. This agreement generally includes a confidentiality clause and sets the fees for the mediatorâ€™s services. It is also used to determine the purpose of the mediation and provide a framework for the process.
Mediatorâ€™s fees (see Fee Schedule)
The mediatorâ€™s fees depend on his training, experience and expertise. The mediatorâ€™s remuneration is generally based on an hourly rate that is approved by the parties before mediation. Unless otherwise agreed, each of the parties will pay an equal share of the fees