Mediation has been defined as:-

“… a flexible process conducted confidentially, in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.”

The new definition reflects modern practice in commercial Alternative Dispute Resolution; it seeks to emphasise the idea that while mediation is a process with a powerful format, it is nevertheless fundamentally flexible. Furthermore, it highlights that mediation is a safe environment wherein the parties can talk freely and experiment with ideas. It is the parties, or disputants as they are sometimes called, who are ultimately in control of the process.

Mediation is voluntary in that, at any rate in most cases, it takes place as a result of the parties having agreed to enter into the process. They are free to leave at any time. Sometimes they are sorely tempted to do so when the well-known (and virtually inevitable) “point of despair” is reached – though the mediator may well warn disputants who are contemplating leaving that he or she will probably come running after them and bring them back!

The mere fact that the parties have agreed to mediate is in itself a step along the road to settlement – it may be the only thing about which they agree and that agreement is something to build on. One has heard said in the past, “Well, at least we’re talking.”  Read More...