What Exactly is Mediation? | A Complete Guide to Mediation

by | Dec 1 2020 | Civil Litigation

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By Alex Ashcroft
Alex heads up LGBT Lawyers' web design and writes about LGBT legal issues in his spare time. While not part of the LGBT community himself, Alex is an avid supporter of LGBT rights. With interests in politics and connections in Brighton's LGBT music scene, Alex brings another valuable perspective to LGBT life.

Mediation | Read Time 8-10 Minutes. 

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Disputes are a crucial element of our culture and are a part of the human decision-making process. The traditional way of resolving these disputes was to settle in the court system. However, a critical tool to avoid court is mediation. A key driving force of mediation is to help people resolve disputes outside of the court.

The mediation process uses strategic strategy and a neutral third-party to assist in the alternative dispute resolution process. It should be noted, alternative dispute resolution is the methods which help two parties resolve conflict outside of a court.

What is mediation?

Mediation is a method whereby the parties in conflict select a neutral third party to assist with communication. The mediator structures a strategic process to help the parties reach a mutual agreement to resolve their conflict. Moreover, the method of mediation is ordinarily informal and is a tool which prevents people from settling within the court system. The process is entirely voluntary and non-binding.

The mediator is there to help you end a dispute; they will not take sides. They will always help you by discussing anything you are unsure about in the proceedings. Furthermore, mediation is sometimes required by the court to prove that you have attempted to settle before bringing legal action.

How does the process work?

The process of mediation is structured and follows a series of stages. The parties involved and the mediator follow a set of specific rules which ensure all individuals affected will be working in conjunction. The process requires the mediator to evaluate the issues and difficulties between the parties in conflict. Mediation is flexible regarding evidence, formality, and procedure. Throughout the process, the parties involved can stop at any time and refer the dispute to the court.

Confidentiality is key to mediation working as it allows the parties in conflict to resolve their dispute without the scrutiny or judgment of the public. Furthermore, the element of confidentiality is a vital part of mediation. It provides an environment where the parties involved can discuss conflicts without anxiety. Also, the discussion cannot be used as evidence against them later.

Once a mutual agreement is made between the parties, it can be put into writing which serves the purpose of creating tangible evidence that the parties resolved the conflict. A key benefit of having a written agreement is that it provides the parties with a reminder of their common ground to prevent future conflict and signifies the ending point of the conflict. The mutual agreement reached is binding contractually and therefore entails the agreement is enforceable as a contract. Enforceability is a key for using mediation as an alternative dispute resolution tool to impose any liabilities on the parties involved if they do not fulfil contractual provisions.

Mediation process

What types are there?

There are various types of mediation which can be used for alternative dispute resolution such as facilitative, evaluative, narrative and transformative mediation. However, the most common forms of mediation are facilitative mediation and evaluative mediation.

Question Marks - Mediation - LGBT Lawyers

What is Facilitative Mediation?

Facilitative mediation is defined whereby a mediator seeks to facilitate the communication and negotiation between the parties in conflict. The mediator aims to assist the parties by using communication and negotiation strategies which help the parties to come to a mutual agreement which is long-lasting. The mediator asks questions to the parties in conflict to identify the critical issues in the disagreement. Moreover, the process is confidential and initially starts with individual sessions before both parties are invited together for a joint session.

It may be noted, facilitative mediation is most suited to relationship situations and can be used if you are finding it challenging to end a civil partnership. A family mediator can help you to reach a mutual agreement which is suited to both of your interests.

The defining characteristics of the facilitative mediator are that they do not provide a solution. The mediator is there to help the two parties in conflict find a solution by themselves. Also, the mediator does not offer opinions on the parties’ strengths or weaknesses. Furthermore, he does not comment on what would be likely to happen if the dispute were to go court.

What is Evaluative Mediation?

Evaluative mediation is based on the trust that the mediator’s knowledge and past experiences can be used to resolve the issues between the parties in conflict. The process involves the mediator evaluating the strengths and weaknesses of the parties by their legal position. The mediator then offers an opinion on what a judge or jury would be likely to do. Furthermore, the mediator also can help by advising parties on how much it would likely cost to resolve through the court. It can be noted, the mediator structures the process and has a direct influence on the outcome reached.

The process of evaluation mediation involved structured meetings between the mediator and one party. The discussions between the mediator and the party are referred to as “caucuses”. They are a vital element of evaluative mediation. The mediator will use their knowledge and understanding to get the parties to comprise, if required, to settle. Finally, the mediator will make a recommendation for settlement for the parties to consider. Above all, the parties in conflict are then able to decide if they want to go ahead with the solution the mediator has offered, or they can reject it.

Evaluation mediation is most suited for disputes which concern business and contract disputes where no comprise has been met after a long period. Finally, evaluative mediation is commonly used in court-mandated mediation whereby the evaluative mediators are often lawyers who have legal experience within the area of the dispute.

Why is it normally successful?

Mediation is useful as it provides the parties in conflict a chance to express their fears and interests relevant to the dispute. The mediator is then able to provide solutions based upon the interests of both parties. Moreover, the solutions provided by the mediator are essential as they are specifically tailored to meet the needs of the parties involved. In addition, the mediator combines negotiation and communication tactics to help assist the parties to agree mutually on a solution.

Same-sex divorce mediation is particularly successful and is advised for the LGBT community as divorce, separation and dissolution can be a complicated process when settled in court. Above all, by using mediation, you can avoid expensive court fees and agree mutually on a settlement which is suited to both your needs.

Mediation - LGBT Lawyers

Why might it fail?

1. Poor preparation – Some mediators are incompetent and do not prepare for mediation sufficiently. You must pick the correct mediator as an incompetent mediator may forget to inform you of essential information.

2. Bad Faith – Mediation is an effective way to settle a dispute. However, some individuals refuse to cooperate when mediating. If a person refuses to cooperate, it will be documented by the mediator and later be used as evidence if the dispute goes to court. 

3. Lack of communication – Failed mediations can happen due to a lack of communication when people fear the outcome of the process.

How can LGBT Lawyers help?

LGBT Lawyers will put you in connection with a lawyer who will assist you by providing you with extensive knowledge about mediation. Our lawyers are specialised in handling mediation cases specific to the LGBT community. We understand disputes can be stressful for anyone with a sensitive dispute; therefore, we take extra care to ensure you receive the best service possible.

At LGBT Lawyers, we tailor our legal services specifically to the LGBT community and everything that being LGBT entails. Our network of regulated and qualified LGBT Lawyers will ensure your legal requirements are met.

LGBT lawyers provide the LGBT community with access to expert regulated LGBT lawyers across the UK. Our aim at LGBT Lawyers is to ensure LGBT clients receive exceptional service quality. Also, we can connect you with lawyers who offer legal advice which is free from any attitude or judgement.

If you have any questions, or want to discuss a legal matter or don’t know where to start, click here. Alternatively, you can call us on 020 3795 9020 or email us at info@lgbtlawyers.co.uk.

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