Mediation is a powerful and effective tool for resolving conflicts. Importantly, the mediator himself, unlike a judge and jury or arbitrator, has NO POWER. By virtue of the fact that the mediator cannot force a settlement, mediation gives the parties a chance to resolve their conflict before the judge and jury or arbitrator imposes a result through a verdict or arbitration ruling.
So, if the parties are resolving their differences on their own, and the mediator has no power to impose a settlement, what exactly is the mediator there for?
Mediation offers the parties the opportunity to work out for themselves exactly what it is that they want out of a settlement. This is done in a neutral forum guided by a skilled professional neutral person, the mediator. The core advantages to employing a mediator to assist with dispute resolution are:
1. Mediation is confidential
- Whatever is said in the mediation sessions is not shared outside of, or after mediation
- Since the mediator is not empowered to enforce a decision he is not subject to being prejudiced by disclosures made during mediation
2. Mediation is conducted “without prejudice”
- Offers put forward during mediation are not binding if the mediation process does not result in a settlement, and the dispute moves forward to arbitration or the courts
- Disclosures made in mediation cannot be used directly in later proceedings
- If mediation fails, the parties are never any worse off, the formal legal process can continue as if mediation had not occurred
3. The mediator does not need to be convinced of anything by either party because the mediator does not decide the outcome
- The mediator guides the process but does not direct the outcome
- The mediator is neutral from beginning to end, never “chooses sides”
4. Mediation is flexible
- Solutions can be put forward that are outside of the scope of jurisprudence or collective agreements
- Creative solutions that allow for unorthodox win/win collaborations or unusual compromises can be obtained
- Settlements achieved through mediation are likely to be satisfactory to all parties, not just one or the other
5. Mediation saves time, money, and reputation
- The alternatives to a negotiated agreement are seldom better for any of the parties
- The alternative to a negotiated agreement is almost always bad for one of the parties, and there is no guarantee that you will not come out of a trial or arbitration with an unsatisfying result.