Anticipated Outcomes When Resolving a Conflict through Mediation

When two parties are having a disagreement and can't come to an agreement, there are different ways to find a solution. Nowadays, people and businesses are avoiding the complicated and potentially expensive court system and opting for alternative dispute resolution (ADR) instead. They may even use both options at the same time to reach a resolution.

In our past blog posts, we discussed the fundamental principles and advantages of mediation. One essential feature of mediation is that it maintains confidentiality and is officially "without prejudice" to the viewpoints of the participating parties.

When there's a disagreement, parties can either meet up physically or virtually to discuss and come up with a resolution. The aim is to reach a compromise that all sides can agree on with the help of a third party who doesn't take any sides - known as a mediator. The mediator will offer guidance to both parties, but won't take sides. The main goal is to find a solution both parties are happy with, as the resulting agreement will be legally binding.

However, what can individuals anticipate from the procedure and the day of mediation?

What type of structure can you anticipate for the mediation day?

Mediation is done without strict formalities. The usual way is for both parties to sit down with a mediator during the early part of the day. They discuss their goals for the mediation and go into separate rooms afterwards. Before the mediation, each party can submit a "position paper" detailing their views on the main issues. Once the joint session is over, the mediator goes back and forth between the rooms to help with negotiation.

However, there is some flexibility in this traditional model. Recently, this has developed due to the restrictions imposed by social distancing requirements, and also due to a growing awareness of environmental sustainability. Mediators are now promoting a mixture of in-person and online meetings, where participants can be located in various locations. The online process is similar to the in-person process, and it has some additional benefits for the parties. They can wait for their turn comfortably from their homes or other preferred locations with internet access. This setup has, in some cases, resulted in a non-confrontational environment, which is beneficial for the parties. Parties involved in lower value disputes who are worried about cost and time, especially where extensive legal and expert teams are involved, may prefer to avoid face-to-face meetings and travel to mediation, making the online option more attractive.

The crucial thing to consider is that the individuals who have the ultimate authority to make decisions (these could be the clients who are paying or their insurers) must be present or easily accessible in order to provide official guidelines.

The mediator will know the goals of each party over time as the process progresses. If it seems that it would be useful for the parties to express their opinions, a group meeting is an option. However, if the mediator thinks that a productive day of discussion is not possible due to tense situations from the beginning, they may choose not to have a joint session.

Negotiations can come to a halt at any moment. The mediator will have private talks with each party in separate rooms to talk about their stance in the negotiation process. No information will be shared with other parties unless there is a request to do so. This means that there could be long breaks in between meetings, so it might be a good idea to bring something to read. The length of the mediation procedure can vary greatly depending on the details, intricacy, and value of the disagreement, so be prepared for a lengthy session if all sides are willing to continue talking until an agreement is reached.

What steps can you take to get ready for the mediation process?

Basically, mediation involves presenting positions and negotiating to find a resolution to disputes. This usually involves compromising in order to come to an agreement that both sides can accept and work with.

Before the mediation day, it's important for parties to think about the best and worst outcomes that could happen. Most of the time, commercial disputes that are settled through mediation involve a specific amount of money. Parties should be aware of the maximum amount they are willing to spend or receive, and they may also want to think about what they will offer initially to move the negotiations along quickly.

When engaging in mediation, it's important to understand that you might not get everything you want. While some aspects of the disagreement might have straightforward solutions, others may require more effort to find agreement. A skilled mediator will recognize which issues are causing the most trouble and prioritize finding a resolution for those first. By resolving the most challenging problems first, it's likely that the remaining disputes will be more easily resolved.

We frequently suggest to our customers that even though mediation has many advantages as a method for resolving disagreements, it should not be taken lightly. It's particularly important to be cautious about going into mediation without proper preparation or, even worse, no preparation at all. This might be one of the reasons why many mediations occur quite late in court or other proceedings, when the parties' arguments are almost fully developed.

What results could be achieved?

In case the argument can be settled completely through the mediation, the involved parties will have an obligatory settlement. Whenever feasible, it is suggested that a written settlement is formulated, and signed on the same day by the mediator or participants. A partial settlement may occur when some problems are solved, and others remain unsettled. A written description of the mutually agreed points is prepared, while the unaddressed issues are dealt with in another manner as advised by the mediator or through legal action if necessary.

Mediation can be temporarily stopped by parties if they are unable to come to an agreement at a given moment. The main reason for this is that they may need to gather additional information, ponder over the situation or consult with others before reaching a decision. In such cases, the mediation process can be restarted at a later time if needed.

From what we've seen, there are times during a mediation when it's clear that the parties involved won't be able to reach an agreement. In this scenario, the mediator can suggest other options, or the parties can choose to take the case to court, even though that comes with the risk of litigation.

When you are contemplating whether to resort to mediation to resolve a conflict, what elements should you take into account?

Prior to choosing mediation as a solution for a disagreement, it's crucial to take into account specific elements. Take note of: