Mediation Overview

The distinguishing characteristics of mediation are the use of a neutral third party, the mediator, to help other parties come to a settlement. To state the obvious, it has nothing to do with meditation.

Detached, Neutral Facilitation

The mediator is not an advisor to any of the parties. The mediator is certainly not a judge or arbitrator, listening to each party and then delivering a binding verdict or award. The mediator is a facilitator, helping the parties but not forcing them in any way: mediation leaves the parties fully in control of the outcome at all times, including walking away if that's what they want to do.

Multi-Level Confidentiality

Mediation is a confidential process and, often, even the fact that it took place is confidential. Anything the parties learn at the mediation cannot be used outside. Parties share information privately with the mediator, knowing that it will go no further. When the time is right, they can authorise the mediator to pass it on to the other side.

By limiting communications in this way, the parties can safely express what it is they truly want and the mediator can understand all parties' positions. This applies not only to the substance of the case, but also to the emotional, psychological and cultural "surround".

Overcoming Strategic Posturing and Information Asymmetry

Armed with this information, the mediator is in a much better position than any individual party to see if settlement is possible and to guide the parties towards that settlement.

Overcoming Emotional and Psychological Barriers

By the time a case comes to mediation, parties are often frustrated, angry, upset, regretful... This emotional baggage can sometimes hinder them in finding the best deal. By providing a safe and controlled way to express and vent those emotions, mediation stops them getting in the way of progress.

Sometimes frustration arises from simply not understanding the other party or "where they are coming from". This might be because they come from another country, another walk of life, another industry. By stepping back and truly listening, the mediator can help parties express themselves and understand each other.

Gains from Trade

Negotiations are rarely "zero sum games". Even in the simplest cases, settling a negotiation early produces savings in transaction costs or litigation costs which can be distributed between the parties, putting them collectively in a better position. Early settlement frees resources, either to move onto the next project or to do something more appropriate.

Although negotiators, or their advisors, often believe they can "squeeze the last pip", mediation can bring to light new information which makes further gains possible which would not have otherwise been discovered.