Imagine a world where everyone could simply agree to disagree. Picture a world where people could resolve disagreements, arguments, or disputes without all the dramas. How different it would be. Among other things, there would probably be no need for lawyers, judges or courts. Accordingly, there would be little need for litigation, arbitration, or even mediation.
As it stands, people can sometimes resolve their differences amicably. For others, this is simply not an option. That is not to say everyone resorts to litigation, however. In some cases, mediation is the perfect solution.
Because it is so effective, most people have probably heard of mediation in the context of Australian law. But did you know there are different types of mediation? Keep reading to learn more.
Beginning with the basics
To fully appreciate the different types of mediation, it is important to have a basic understanding of mediation and how it works. With that being stated, mediation is generally defined as: a process in which a neutral third party helps two or more people involved in a disagreement find a mutually acceptable solution.
The neutral third party is called a mediator. He or she relies on special training and experience to:
- facilitate communication
- encourage the parties to understand each other’s point of view
- help the parties identify issues and solutions
- use creative problem-solving techniques to help the parties reach a consensus
If the parties reach consensus through mediation, it is recorded in a written agreement that can be enforced through the courts. If they cannot reach consensus the issues simply remain unresolved.
The four types of mediation
In all, there are four different types of mediation. These are co-mediation, shuttle mediation, mediation-arbitration (”med-arb”), and multi-party mediation. A brief explanation of each follows.
Put in its simplest terms, co-mediation is a process in which two mediators try to help the parties resolve their differences. One mediator works with each party, thereby eliminating any concerns about fairness or objectivity sometimes associated with traditional mediation.
Other than that the process is no different than traditional mediation. Each mediator helps the parties try to reach consensus by creating an environment where they can:
- pinpoint the source of the grievances
- develop potential solutions
- consider other options
As in traditional mediation, co-mediators cannot give the parties advice about the merits of the dispute or make any decisions about the result. However, they can offer advice about the mediation process. They can also decide which mediation techniques to use to promote resolution.
Shuttle mediation is a technique in which one mediator works with both disputants. But instead of engaging everyone as a group, the parties are separated. In some cases, they will remain in the same building, but stay in separate rooms. Sometimes the disputants will have meetings with the mediator on different days, or at different times. The mediator speaks with each party separately to convey proposals, terms or concerns.
As in other types of mediation, the mediator cannot decide or influence the outcome.
Mediation-arbitration, or “med-arb,” is a blended approach to alternative dispute resolution. In this technique disputants, all agree to mediation. If, after all, reasonable efforts to resolving the dispute through mediation fail, the dispute proceeds to arbitration.
Arbitration is a process involving one or more neutral outsiders called arbitrators. Their job is to decide how the dispute should be resolved. They do so after hearing arguments from all parties, and any relevant expert testimony. The arbitrator’s decision is binding.
This is simply mediation conducted to resolve a dispute between two or more parties. Because multi-party mediation can be extremely complex, co-mediation is often employed.
An initial meeting with the parties will allow the co-mediators to develop a plan for mediation going forward. They may also ask one or more parties to prepare for mediation by completing certain tasks. This gets the parties to start thinking about negotiations and potential solutions well ahead of time.
During the mediation session, the co-mediators will facilitate individual conversations. They will also meet to exchange information and share progress reports. If all goes according to plan, the parties will be able to reach consensus on a solution which can then be formalized in a written agreement.
Advantages of mediation
In general, mediation has several advantages when compared to litigation. These are:
- Affordability – Mediation tends to be a more cost-effective option.
- Efficiency – The mediation process can usually settle a dispute fairly quickly.
- Efficacy – Data shows that mediation is successful in more than 85 per cent of initiated disputes.
- Flexibility -Mediation is less structured than litigation, and parties do not necessarily need legal representation.
- Empowerment– Disputants have the ability to create and reach consensus on solutions rather than having solutions imposed upon them.
- Confidentiality – Information provided during mediation may not be used as evidence in any trial or judicial proceeding. The only exception is if its use is required by law or the parties consent to its use.
Mediation can be used to resolve all sorts of disputes. To learn if it may be a viable option for you, contact Australia Lawyers today.