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  • Writer's pictureChuck Kanafi

Why mediate?

Conflict resolution does not equal litigation. Recognition of the many shortcomings of the formal legal process has led to a deeper examination of other forms of conflict resolution, collectively referred to as ADR – appropriate (or alternative) dispute resolution. These methods include, mediation, arbitration, concilliation and others.

Mediation is a method of facilitating negotiation between parties in disagreement.

Practical advantages of mediation over litigation (and often over arbitration):

1. Consensuality: the mediation process is voluntary at all stages. Any party feeling uncomfortable with the proceedings can stop them at any point:

  1. All decisions are made consensually: matters of procedure, manner of clarifying facts, modalities of execution of the agreement, and so forth. The mediator is available at all stages to identify questions requiring consent and to assist in reaching operative consensus;

  2. The parties actively participate in the formulation drafting of the mediation outcome;

  3. A party may withdraw from the mediation process at any time, including after an agreement has been drafted but not yet signed;

  4. Neither the mediator nor any other person can compel a participant to accept a decision or outcome;

  5. Parties may or may not be represented by counsel, according to their wishes

2. Confidentiality: all proceedings are confidential, and even information disclosed by a participant to the mediator is confidential unless they specifically authorise its use. Court proceedings, on the other hand, are public and their outcomes are published.

3. Court enforcement: the desired (and expected) outcome of the mediation is an agreement signed by the parties and “countersigned” by the mediator. This agreement has the force of a binding contract (and the parties may also indicate if they wish it to be binding under laws of differing jurisdictions). As such, it remains confidential, and statistics show that there is a higher rate of compliance with mediation agreements than with court judgments.

  1. In case of future dispute the agreement is enforceable in a court of law. If the parties so desire, they may submit the agreement for adoption by the court and granting the force of judgment. This is left to the parties to agree upon. This procedure has its advantages but also entails waiver of confidentiality.

  2. The newly adopted Singapore Convention

4. Collaborative vs. Competitive: a central objective of the mediation is to improve and preserve the relationship between the parties, so that the mediator will often be exploring options to broaden the parameters of the agreement beyond the formal conflict at hand. This can and should lead to strengthening the fabric of the relationship between the parties so that it can survive the specific conflict and even emerge stronger than before.

It is often the case that even where agreement is not eventually reached, parties indicate to the mediator that the process was positive and assisted them in obtaining new perspectives not only on the conflict but on their relationship with the other party as well.

5. Speed: mediation proceedings tend to be shorter than litigation, and the meetings are scheduled according to the participants’ convenience and wishes (see: consensuality).

6. Cost: due to the speed, and the flexibility in procedure and evidence, the cost of a mediation proceeding is often a fraction of the cost of litigation.

7. Mediation is communicative: the participants may (and often do) address each other directly, rather than being required to communicate through a judge. The mediator can, of course, serve as a confidential intermediary where necessary.

8. Controlled risk: if the mediation efforts fail, the participants are always free to (and usually do) return to formal litigation proceedings. Due to the confidentiality of the mediation proceedings, no advantage has been lost by participation in mediation. Should an agreement not be reached, the content of the mediation is confidential and may not be used in court. No electronic record of meetings may be made by any participant or the mediator, and the mediator may not be called to testify.

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