General Information
Mediation Institute Membership Update March April 2023
Update on Mediation Institute membership for this month and looking forward to next month.
Use mediation to resolve disputes on your terms…part.5
Does Mediation Work?
Mediation has been proven to deliver results. Settlement rates, which are usually measured by how many cases are resolved without the need to escalate to legal action, vary depending on the style of mediation but in general rates vary between 75 to 95%.
The evaluative style, especially that used in court diversion programs, tends to have a higher “success rate” in part due to the very close and looming threat of an expensive court case, the fact that parties are often required to sign binding agreements on the day of the mediation if a settlement can be reached and the more evaluative style of mediation where the mediator and/or legal representatives evaluate the strength of the parties case and urge them to settle when they believe they will not do better in court.
The more narrative and transformative styles of mediation do not focus so strongly (or at all) on settlement rates as they are focused on improving relationships and may not even result in a formal agreement at all. Frequently a “trial agreement” is used to give the parties an opportunity to rebuild their relationship and see if the proposals agreed to in mediation will work for them.
Beyond the style of mediation it is important to look for a mediator who has helped people with similar issues to yours. For example, if you are looking for a mediator to help your family to make decisions about the best way to care for an elderly family member a mediator who has experience in elder mediation would be best. They will be aware of the issues you face, the services and resources they could refer you to and will be more helpful than someone without any understanding of the issues you face.
Likewise if you are separating in Australia then you should only work with a Family Dispute Resolution Practitioner (Family Law Mediator) as they have post-graduate training in the family law system and the issues related to parenting plans and property settlements. A mediator who has only go NMAS Accreditation, even if they are a lawyer, will not have this post graduate level knowledge.
Despite the good likelihood of success from mediation, much lower cost and duration of the process going to court is the first choice for dispute resolution for many people. More and more countries are beginning to recognise the benefits of mediation and other forms of ADR and are making it a mandatory part of the litigation process for civil matters. In other words parties have to show that they have attempted to resolve the issue through ADR before they can go to court or before they are able to go to trial.
In Australia and in countries like Brazil, Canada, France, Germany, Belgium, the Netherlands, Poland, Portugal, Kenyaand the United States have instituted mandatory or quasi-mandatory mediation in at least some regions. Though the exact regulations vary from country to country in many parts of the world courts now use mediation to help parties settle disputes. Depending on the location, these may be state sanctioned mediators, or 3rd party referrals.
Even if attempting mediation first isn’t mandatory, the numerous benefits of mediation, maintaining control over the outcome, saving money, and saving time make mediation a logical first step in dispute resolution.
General Information
Mediation Institute Training Update March April 2023
Monthly training update from Mediation Institute. Recap of this month and looking forward to next month.
General Information
The NMAS Review: Progress Updates from the Mediator Standards Board
The NMAS Review has been completed and now is in the implementation phase as the Mediator Standards Board works on the changes to the National Mediator Accreditation System (NMAS) flowing from the review.
Concilliation
Definition
Conciliation is an alternative dispute resolution process in which the conciliator, who is an independent third party, facilitates a dispute resolution process similar to evaluative mediation in which the conciliator facilitates the exchange of settlement offers. The conciliator may make suggestions about the strength of each parties cases, their offers or make suggestions regarding settlement offers but they do not have the power to impose a resolution.
Conciliation is most frequently used in cases where the “facts” can be clearly exchanged and there is a formula of some type to evaluate the relative positions against such as family law property disputes and some industrial disputes.
Process
In Australia conciliation is generally a court ordered process where the court orders a matter to conciliation before being willing to set a date for a trial.
In the conciliation there is a more formal exchange of information such as financial statements or statements of claim before the conciliation session. It is highly recommended that parties are legally represented during the conciliation process and that they are prepared with a good understanding of what the likely best and worst case scenario’s are if they can’t resolve the issue in conciliation.
During a Conciliation meeting there is often a brief time where the parties are in the same room and their formal opening statements are made. They then adjourn to separate rooms with their legal representatives and the Conciliator moves from room to room to help them to develop, exchange and put settlement proposals.
This negotiation continues until a settlement agreement is reached or the Conciliator decided that the parties are too far apart and calls an end to the process.
There is often an administrative hearing with the judge for their case on the same day or shortly after a failed conciliation and the next step in the litigation process is determined.
If agreement is reached it is generally written up into Court Orders for signing on the day, resolving the matter and ending the court case. As parties are legally represented in most Conciliation meetings they have on the spot legal advice and so there is no delay between reaching a settlement agreement.
Conciliation can be a high pressure situation with a focus on the settlement agreement which can lead to people agreeing to settlements they later regret but as it is usually a binding agreement on the day it is too late to change it after the event.
For this reason mediation is a more appropriate process if you want to retain control and make a calmer, more controlled and considered decision about your settlement.
Arbitration
Definition
Like mediation and conciliation, arbitration is a method of dispute resolution that involves an impartial third party (the arbitrator) to avoid the cost and slowness of the litigation process.
While usually significantly more expensive than mediation and not always requiring the initiation of a court case such as with conciliation the benefits of arbitration are similar to the other two processes. The people in dispute are able to avoid the expense, delays, and adversarial nature of litigation by in effect appointing a private judge to determine their case.
The difference between arbitration and mediation or conciliation is that the parties contract the arbitrator to determine the outcome of their case. Unless a mistake in law has been made by the arbitrator their decision is binding and final.
Arbitration Process
The process usually starts when one party, the claimant or initiator, sends a notice of arbitration to the other party.
Arbitration is a more formal process than mediation and so rather than attending multiple sessions, there is one arbitration hearing where evidence and witnesses are presented, after which, the arbitrator or panel of arbitrators will deliver the decision.
The process is conducted in a similar way to a court hearing with the arbitrator acting as a private judge. Sometimes people decide to use arbitration instead of going to court and in other matters they may be sent to arbitration by the court.
Depending on the type of matter to be arbitrated there may be a single arbitrator or a panel of arbitrators hearing the case.
Mediation to Resolve Disputes continues reading here…
