Role of the mediator

The Mediator is independent of the parties.

The Mediator does not make any decisions or give advice. Instead, the Mediator uses his or her experience to structure the mediation process to enable the parties to reach their own outcomes.

This is an important feature of mediations – the outcome is determined by the parties, it is not imposed by a third party, such as a judge or arbitrator.

The Mediator can consider the commercial, strategic and personal positions of the parties, an important advantage over the litigation process, where the courts can only consider the strict legal issues.

The Mediator discusses the issues with the parties separately, in confidential side meetings, which allows each party to discuss their options without disclosing their hand to the other parties.

The role of the Mediator is to provide a structure for the negotiations and to investigate ideas which might lead to a settlement agreement.

When an agreement is reached, the terms are put in writing and signed by the parties at the mediation.

Advantages of mediation over litigation

Mediation has significant advantages over litigation.

MEDIATION

• Easy to organise.
• Quick.
• Confidential.
• Less expensive.
• Costs are usually fully specified in advance.
• Parties determine the outcome.
• Flexibility range of possible settlement options.
• Consensual not adversarial.
• Parties control the process.

LITIGATION

• Convoluted court processes involving many preliminary court appearances and a lengthy trial.
• Commonly takes more than year to reach a hearing.
• Court proceedings and judgments are publicly available.
• Very expensive.
• Costs can increase dramatically over estimated fees.
• Court determines the outcome.
• Court findings can be appealed to a higher court which can significantly extend the duration and increase the cost.
• The court can only make orders that are within its limited powers and within the words of the pleadings.
• Adversarial procedure involving stressful cross-examination.
• The court controls the process.