Compared to more drastic forms of dispute resolution (such as going to court), it's usually easier, cheaper and quicker to resolve a disagreement by simply talking through the problem.
On too many occasions, however, people struggle to have difficult discussions before disputes spin out of control.
But that's where mediation comes in.
Mediation allows a way of encouraging discussion and resolution between the disputing parties.
The mediation process
Mediation is a process where a neutral, experienced person helps those involved in the dispute resolve it through discussion and negotiation.
The disputing parties participate voluntarily and actively in the mediation.
The process is iterative and continues until ideally, an agreement to resolve the dispute is in place. Those involved commit to this agreement and they are responsible for any subsequent actions required under its terms.
While mediation is often used to prevent the need for court action (litigation), it can be used effectively even after litigation has started. In these situations, when mediation is started, any litigation is halted to give the parties a chance to reach a resolution. If there is no resolution, the litigation continues.
If the outcome of the mediation is that the disputing parties agree a legally binding settlement that is subsequently not fulfilled, the litigation can start at the point where it was paused.
Example scenarios that may call for mediation
1. Commercial disputes
Where a disagreement between a client and a supplier is already the subject of litigation.
2. Company founder disputes
Where founders discover, some time into the startup journey, that their commercial and/or personal objectives are markedly different, or where their relationship has simply broken down .
3. Partnership disputes
Where relationships have become strained due to, for example, an imbalance or shortfall in income or other expected contributions, disagreement over the ‘ownership’ of a particular customer relationship, customer complaints, etc.
4. Workplace disputes
Where working relationships break down because, for example, a colleague is denied promotion and blames this on their manager, or because very different working styles and expectations conflict.
5. Employment disputes
These cross a range of topics including long-term sickness and return to work, sexual assault, performance management and pending or failed grievances.
6. Shareholder disputes
With management, or between each other, including where concerns arise about business performance and strategy, business governance matters, proposals around share issues and shareholder rights or voting powers.
7. Boardroom disputes
Where the normal (challenging but fruitful) discussions about significant issues relating to performance, structure and strategy have taken an aggressive and/or resented course and directors can no longer reach agreement unassisted.
The role of the mediator
The mediator helps those in a dispute resolve their differences by:
- facilitating all discussions, whether separate or joint
- creating a clear understanding of the issues involved
- keeping up a sense of momentum, even when it feels as though there is none
- exploring assumptions and asking awkward questions, where appropriate
- coaching negotiations
- managing and concluding the process
- ensuring all documentation is in place
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