Why Should I Mediate my Dispute?
Mediation is a voluntary process whereby a neutral person (the mediator) helps the people (parties) within the dispute revaluate the issues so that they can come up with a solution amongst themselves that is of their own making, and is an agreeable outcome to all parties involved. The mediator has no power or authority to direct the parties to a decision and can not force any decision upon them. This is commonly known as Alternate Dispute Resolution or ADR
Mediation can drastically reduce the time, cost, disruption, negative publicity and loss of control compared to taking a dispute or action through the New Zealand civil courts system. Mediation can remarkably preserve the ongoing relationship between the disputing parties and give closure to an unfortunate event that has occurred. The happenings at mediation are confidential to those present and mediations are held on a "Without Prejudice" basis. Mediated results are often uniquely customised solutions to suit the situation at hand. Most people, both in business and their personal life, do not look for conflict or disputes. However, often these arise due to events out of one's control or an unforeseen set or circumstances eventuating. You can not prevent disputes arising, but you can choose to deal with them in a manner that has the least interruption to your life.
In the civil courts system there is always, at minimum, one loser. More often than not, both parties feel that they have lost. One party may feel this way because the Judge or decision maker has ruled against them. The other party may feel this way because the Judge or decision maker did not rule enough in their favour. Also, their net gain, after having taken away their costs from the amount awarded to them will, more than likely, be a negative number.
The benefits of mediation are:
Mediation is a far quicker process. Waiting times to get an available mediator can be as quick as week and should not be any longer than a month. Most successful mediations happen within one day mediation. Compare this to how long it takes to get in front of a Judge & most civil cases involve a number of appearances before a Judge and there is the risk of the Judge's decision being appealed. An agreed settlement at mediation is just that. The parties have all agreed to the outcome. Accordingly there should be nothing to appeal as all parties have agreed. A number of civil cases do get taken to appeal, thus adding a great deal of time and expense involved.
The age old saying of "Time is Money" rings very true. With mediation likely to bring a conclusion in a much short time period, the costs incurred are far less. You do not have to pay the ongoing court costs. Money spent on lawyers preparing for a mediation would be spent in a similar way in preparation for a court case. Should the mediation not settle then there is less extra work for the lawyers in getting your case to court.
We have completed a study on the Cost Efficiency of mediation, that makes for interesting reading.
Going to court causes a lot of disruption. Witnesses have to take time off work, people must assist with the collation of documents and the time during which the dispute is not resolved can be disrupted and defocus you from other activities.
Negative Publicity and Confidentiality
Our courts are generally a public place, except for celebrities with name suppression. Happenings within court can be reported on and these events are then open for all to see. In contrast, mediation is a confidential process, unless all parties agree otherwise. What happens in mediation stays in mediation. There has been a recent case that has tested this and held up the confidential nature of mediation.
Loss of Control
Once a civil case or arbitration has commenced, the parties have lost control of the outcome. They have handed this control over to a Judge or an Arbitrator. The evidence accepted is by a set of rules which the Judge or Arbitrator will apply. What you rely on most may not be accepted and you have very little say otherwise. The available remedies for Judges or Arbitrators decisions are somewhat limited. In Mediation, you keep the control. It is a voluntary process, with no limit on what factors or aspects of your story you can tell. The agreed result has no limitations, thus it can encompass a far vaster array of factors than our Judges or Arbitrators can consider.
A mediated settlement is far more likely to preserve the relationship between the parties as, effectively, the parties have formed a type of bond in reaching a solution that they can both accept. This can be important for parties in business wanting to continue having a commercial relationship with each other after the dispute is resolved. Unfortunately, it is rare for two parties to maintain such a commercial or business relationship after one party has sued the other through the courts system.
All mediations are held on a 'Without Prejudice" basis. That is; any offer, admission, concession or statement made at mediation cannot be used for, or against, a party in any subsequent judicial action. This is a very important part of mediation as it encourages the parties to be frank and open with each other, with the security of knowing that, what they say in mediation, cannot be used against them to their detriment later on. This helps to get to the root of the problem and to uncover any underlying issues that the parties may have. Once these are resolved, the other aspects of the dispute appear small by comparison and are then far easier to address.
The range of solutions parties can create is only limited by their imagination. Quite often, the mediated agreed solution that meets the needs and interests of both parties is something that our courts do not have the power to order. An over-simplified example of this is two neighbours disputing over who fixes a common boundary fence. One neighbour has a good contact for the supply of materials and the other neighbour is a veteran "DIY" person. A district court Judge can only order for a party to fix the fence or for the neighbours to split the cost of fixing the fence on a percentage basis. In mediation, a possible outcome that the neighbours might conceive, with help from a mediator, is that one pays and supplies all the materials and the other does the physical fixing. In reality, what would more than likely happen after the successful mediation, is that the neighbour supplying the materials would want to help the other neighbour do the work. The end result being that the fence is fixed and, more than likely, there is a vast improvement in neighbour relations.