Mediation has become increasingly popular in recent decades. Many people embroiled in family or business conflicts seek this non-adversarial approach that leaves the disputants in control of the outcome.
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What Is Mediation?
Mediation is a conflict resolution process in which a neutral third party (the mediator), who has no decision-making authority, assists the disputants to voluntarily reach a resolution that is acceptable to both sides.
- Voluntary – both parties must be willing and can end the process at any time
- Autonomous – the parties alone determine the issues and outcomes
- Confidential - mediators are bound by a strict code of confidentiality
- Safe – the mediator ensures the process is fair and free of power imbalances
- Empowering – decisions are made by the disputants, not by the mediator
- Effective – agreements last since they are created by the disputants not externally imposed
How Is Mediation Different From Litigation?
There are at least five distinct differences between mediation (described above) and litigation, the legal process that leads to court:
- Mediation seeks common ground to arrive at a settlement that satisfies the interests of all stakeholders whereas litigation is a more adversarial process.
- Mediators do not take sides or give legal advice but remain entirely neutral. Lawyers work only on behalf of their client, offering advice only in the best interest of their client.
- Mediation settles disputes privately, whereas court records are open to the public.
- Parties in a mediated dispute make decisions on their own, unlike the court process in which decisions are imposed by an arbitrator, judge or jury.
- The time frame of mediation is under the control of the parties in dispute whereas the time frame of litigation is determined by the court system.
What Are The Advantages of Mediation?
- Control: In mediation you create your own solution. No decisions are forced upon you. The process is entirely voluntary so you are free to enter and end it at any time. When mediation is successful, however (as it most often is) you will be ensured of terms that make sense to you – because they are yours.
- Money: Mediation is almost always less costly than court. Rather than each of you paying your own lawyers you split the cost of one mediator at an hourly rate that’s likely lower. Also, mediation is usually quicker, so you pay for fewer hours.
- Time: The parties can proceed at the pace they choose, sometimes reaching settlement in a single session since you aren’t judging who is at fault, but co-operating to find a solution. The length of time depends on the complexity of the case and commitment to settle.
- Understanding: Mediation requires that the parties communicate. It works best when parties reach an understanding of one another’s underlying interests. As a side-effect your self-understanding often grows.
- Respect: Greater appreciation for the other party is often a by-product of direct, non-adversarial communication. The search for common underlying interests often leads to enhanced mutual respect.
- Lasting Agreements: The terms of agreement are chosen by the clients, not imposed by a judge, so the parties are more likely to abide by them. The process of communicating in mediation often make parties better able to resolve future issues, should they arise.
Is Mediation a form of Therapy?
No. Although mediation shares some features with psycho-therapy and counselling, it is distinctly different. Mediation can have therapeutic effects. It shares with therapy the practice of establishing a supportive, non-judgmental relationship between the mediator and clients, in which issues that are often deeply personal are openly discussed.
A mediator does not diagnose or attempt to resolve underlying psychological issues. The childhood roots of personality are not explored.
Mediation is a results-oriented process, undertaken over a relatively brief period of time, with the goal of resolving a specific, interpersonal conflicts. Therapy seeks deeper psychological transformation. The self-awareness and practical communication skills learned in mediation may last a lifetime, but personal growth is a by-product, secondary to the goal of conflict resolution, whereas it is usually the primary goal in psycho-therapy.
Who Should Choose Mediation?
Mediation can be used to resolve any type of dispute, from international conflicts to squabbles in the schoolyard.
The only prerequisites are a mutual desire to resolve the dispute, and a willingness on both sides to listen respectfully to the other’s perspective.
More formal options, such as arbitration or court, may be preferable when power imbalance, abuse or psychological factors prohibit either party from taking an active role.
Is Mediation Right for Everyone?
Although Mediation can address any type of conflict it isn’t the right method for everyone. Mediation only succeeds when both parties are willing and able to engage honestly in the process.
More formal options, such as arbitration or court, may be preferable when power imbalance, abuse, or psychological factors prohibit either party from taking an active role.
The less formal option of face-to-face negotiation, without a neutral third party, is always available to those who can communicate with one another calmly and effectively.
Who Are Reflective Mediation's Clients?
Services we offer are available to any family, business or institution, but are particularly designed for school communities: students, staff and families.
Students: Peer Mediation Programs.and training in other conflict management strategies
School Staff: Reflective Mediation provides an extensive range of professional development seminars and workshops on conflict management, communication and academic motivation.
- Family counselling is available to help parents and/or students who are experiencing conflict in the home,
- Divorce mediation is offered for couples in the process of separation or divorce.
Parent Groups: Mike MacConnell offers talks on a range of topics related to parenting skills.
Other Workplace Settings: Mediation and conflict management coaching are offered by Reflective Mediation to any business or institution where improved communication and conflict management can enhance productivity and the quality of the workplace..
Are Mediated Divorce Settlements Legally Binding?
No. At the end of a successful mediation, the mediator will prepare a Memorandum Of Understanding or an equivalent document to summarize the agreed-upon terms. Settlements prepared by mediators are not signed by the clients.
If the parties wish to convert the settlement into a legally binding document they should each get independent legal advice and arrange for a lawyer to convert the mediated agreement into a legally binding document to be signed and submitted to the family court.
How Private & Confidential Is Mediation?
Confidentiality is crucial to the success of mediation and to lasting settlements. The mediator’s code of ethics strictly forbids any sharing of knowledge learned in mediation. The only exception to this strict confidentiality is when someone threatens harm to him or herself or another person.
Most mediations are “closed”, meaning none of the information from mediation is admissible in court. This encourages parties to freely express their interests without fear that their words might later be used against them in court.
“Open” mediations can be undertaken if both parties wish to do so. Rules of confidentiality do not apply in the same way in “open” mediation, so information learned can be shared with the court, although the mediator remains bound by the same code of confidentiality as in a “closed” case.
Can A Judge Make Mediation Mandatory?
In some jurisdictions yes, but not in Ontario where Reflective Mediation operates. Mediation has become so respected that judges frequently send parties to mediation to avoid lengthy litigation. Although parties to the court case in Ontario may be under the impression that the mediation is mandatory, that is never the case. Mediation must always be voluntary.