Thursday, April 3, 2014

Mediation Process: An Overview

Although mediation remains a largely unexplored dispute resolution mechanism throughout much of the GCC, it could certainly be a useful method for disputing parties to reach an amicable and expeditious resolution. This article will provide an overview of the mediation process, the role of the mediator, and will briefly discuss some of the benefits to mediation.

What is Mediation?

Mediation is a “structured negotiation” conducted by a mediator. The mediator serves as a neutral third party who provides an impartial viewpoint to the disputing parties. Unlike a judge or an arbitrator, the mediator does not issue a binding decision which the parties are obliged to honor. Nor does the mediator have the authority to issue an opinion, or even a suggestion as to what the outcome should or could be. Rather, as a third-party neutral, the mediator helps the disputing parties engage in constructive dialogue whilst guiding them to a mutually accepted resolution.

The Mediator’s Objectives

The mediator has three primary objectives. First, the mediator must establish a relationship of trust and confidence between the parties. Second, the mediator must facilitate a constructive conversation between the disputing parties by helping them develop a framework in which open dialogue can take place, whilst steering the discussion towards healthy, constructive dialogue. Third, the mediator must extract the true root of the disputing parties’ concerns, and frame these respective issues in a manner which will help the parties understand each other’s position.

The mediator’s ultimate goal is to help the disputing parties come to a mutual resolution.

Benefits to Mediation

Informality – Mediation is not bound by any formal procedural or evidentiary rules. It is simply a platform for the parties to voice their concerns, and to explain their positions in a confidential setting without prejudice, and to better understand their adversaries’ positions.

Flexibility – Since mediations are not administered by way of formal procedures, the process can be customised to suit the parties’ preferences. For example, if the parties would like to meet with the mediator individually on more than one occasion, the parties are free to structure the mediation as such.

Privacy – Mediation agreements usually contain privacy clauses, requiring the entire process to remain confidential.

Control – Since mediations are, in effect, informal, the parties maintain significant control of the mediation’s timing and progress.

Creative outcomes – Significantly, mediation provides a unique platform that encourages the parties to consider (and pursue) creative outcomes to their dispute. In contrast, an arbitrator or judge is required to finally decide who, in their view, is right and who is wrong. As such, disputing parties may be able to reach an outcome that accommodates the needs and/or claims of both parties.

Helps preserve relationships – Litigation and arbitration proceedings, by their very nature, are contentious. As such, parties often part with strained professional and business relationships. Conversely, mediation provides a controlled venue which encourages the parties to settle their claims amicably which, in turn, helps the parties preserve their relationships moving forward.