“Are mediation and conciliation the same? What merits and demerits does mediation have? What are the roles of mediator? What would be the legal effect of mediated agreement? And so forth”

Abstract:

Mediation is a procedure where by a third party aids the disputants in finding a solution by offering specific proposal as possible terms of settlement, this third party is referred to as mediator. Mediation and conciliation are almost same but the significant difference between mediation and conciliation is that conciliation may include an advisory aspect and on the other hand mediation works purely facilitative it has no advisory role. Like any other settlement procedures mediation has it merits like less expensive, promotes communication etc and it also does have some demerits like mediators cannot advise, any parties can withdrawal anytime etc. Moreover, in mediation a mediator has to play a significant role and have to maintain some specific standard and ethical guideline. Mediation is a binding agreement, obviously signed by the both parties and if the agreement is broken some consequences has to be faced. Mediation has some fees depending on the agreement and it can also be terminated by following some procedure. Last but not the least; mediation is very helpful in comparison to a lawsuit because mediation is quick, private, fair, and inexpensive.

Mediation

“Mediation is a process in which a natural person helps the opposing parties to reach their own settlement”[1]Thomas E. Crowley

Mediation is a procedure where by a third party (mediator) aids the disputants in finding a solution by offering specific proposal as possible terms of settlement.[2]Mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavor to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of the resolution, but may advise on or determine the process of mediation whereby resolution is attempted.”[3] In mediation people get the chance to say what they really need to in a confidential, safe atmosphere with the presence of a mediator to keep the communication respectful and constructive. The sooner mediation can be arranged the more successful it will be. Mediation is totally voluntary. It is also confidential; anything discussed stays within the room and is not disclosed to any other parties. Mediation is an informal dispute settlement process run by a third party, called a mediator. Mediation is intended to bring two parties together to clear up misunderstandings, find out concerns, and reach a resolution.[4] The process is voluntary, during the mediation, each side will present its view of the issue, and the mediator will work with each side in a caucus to attempt to work out a settlement. At the end of the process, the mediator can present his or her findings and present a potential solution to the issue.

Conciliation

Conciliation is the process in which an impartial, neutral, third party (the Conciliator) seeks to assist the parties to a dispute to reach an agreement on a mutually accepted solution, with the Conciliator’s assistance, the parties identify the issues in dispute, develop options, consider alternatives and endeavor to reach an agreement.  In the event that agreement is not reached at conciliation the Conciliator may make a recommendation[5].

The Conciliator has an advisory role on the content of the dispute and/or the outcome of its resolution, but not a determinative one.  The Conciliator reports to the Film Code Committee on the number of disputes that go to conciliation, the number of conciliations that reach settlement and on whether any recommendations were made and followed. The issues raised during conciliation will not be disclosed to the Film Code Committee as they are confidential to the process.

Conciliation is a process similar to mediation whereby the conciliator seeks to facilitate a settlement between the parties. Under the industry defined procedures for conciliation, the conciliator is obliged to issue a recommendation for the resolution of the dispute if the parties fail to reach settlement.

Difference between Mediation and Conciliation

Mediation and conciliation is almost same thing but there is a significant deference between them and that is conciliation and mediation lies in the fact that conciliators possess expert knowledge of the topic in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant legal framework pertaining to the argument. Therefore conciliation may include an advisory aspect. Mediation works purely facilitative, the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.

Both mediation and conciliation serve to identify the disputed issues and to generate options that help disputants reach a mutually-satisfactory resolution.[6] They both offer relatively flexible processes; and any settlement reached should have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favor of the party with the strongest legal argument. In-between the two operates collaborative law, which uses a facilitative process where each party has counsel.

 Merits and Demerits of Mediation

Merits of Mediation:

  • The process promotes communication and cooperation.
  • It allows the parties, not the court, to make decisions affecting their future.
  • It is confidential. There is no public disclosure of personal problems or finances, unlike litigation where both the trial proceedings, as well as all papers filed, are open to the public and moreover, anything said at mediation is confidential and cannot be used in court.
  • Mediation usually costs less than litigation[7].
  • Provided an experienced and respected mediator is selected for the process, mediation is normally quicker, cheaper and more informal than the court process or other forms of dispute resolution.
  • If agreement is not reached at mediation, then at least some of the issues can be identified and limited by the process.

Demerits of Mediation:

  • As the mediator is neutral, they cannot advise either party. Therefore, the parties must rely on their attorneys to be fully informed of their alternatives.
  • If one party has been dominant during the affiliation, the other party may not feel as fully capable of expressing important concerns as he or she would, if the lawyers were present.
  • Mediation may resolve the matter, but if it does not resolve the matter it often limits the matters.
  • If mediation does not succeed; the parties may have wasted time and money on the process and still face the expenses of a trial.[8]
  • Another disadvantage of mediation is that either party can withdraw from the proceedings at any time.

Roles of Mediator

Mediation like all other kinds of dispute resolution, including trial is only as good as the people involved. A mediator who is not very sharp won’t be able to do all the neat things that make the ritual of resolution work.[9] The successful mediator will focus on what both parties are saying; listen without getting steamed; know what to listen for; summarize, in natural terms, what the parties say; separate “fact from fiction” help the parties focus on and move toward settlement; and keep the parties on a level playing field.

  • The mediator does not represent either of the parties. Legal advice will only be given by and taken from each party’s own lawyers who are exclusively responsible for protecting their client’s wellbeing.
  • The mediator’s job is to guide the parties towards a mutual settlement.
  • The mediator is required to act fairly and impartially in identifying and considering points of difference, discussing legal rights and duties, and the practical implications of competing proposals with the parties and their legal advisors.
  • Any opinions, suggestions or recommendations of the mediator are not binding and will not force an unwanted solution by either party.
  • A range of available options will be explored with the parties during mediation with a view to reaching final resolution, but the choices and decisions are theirs alone.
  • The mediator shares joint responsibility with the parties for protecting and maintaining the confidentiality of the process.
  • Mediator will not witness for or against either party in an arbitration hearing or in a court of law.
  • Mediator’s role can also be related to devil’s advocate; like the devil’s advocate of old, politely but firmly “test reality”[10] by asking each party to articulate the consequences of its proposed solutions and the consequences of failing to reach an agreement.

Legal effect of mediated agreement

Any resolution of a dispute by mediation is binding when a final settlement agreement has been signed by the parties. The agreement is not enforceable however until it is converted to an order of the court or a binding financial agreement. A mediated agreement is legally binding. Specifically a mediated agreement is one that all stake-holders in the dispute voluntarily agree to. Generally speaking, agreements reached in mediation and resulting in a signed written document (Memorandum of Understanding) are as legally binding as any other written contract.[11] As result, it is important for each party in the dispute to fully participate in the resolution process, and to bring all issues in dispute to the table. In addition, neither party should agree to anything without full consideration as to what they are agreeing to and the long-term ramifications of the final negotiation. Moreover, if the parties reach settlement, that settlement is reduced to writing and signed on behalf of the parties. It then becomes final and binding.  If settlement is not achieved, and the conciliator issues a recommendation, that recommendation will become final and binding as between the parties unless one of them rejects the recommendation within a specified number of days.

Consequences of Breaking a Mediation Agreement

A mediation agreement document is a contract. For out-of-court mediation, it’s a standard contract; if either side does not honor the contract, then the only means the other party has is taking the action to court.[12] When this happens they will sue not only for the original disagreement, but also for breach of contract. This means that whoever broke the contract would have to pay damages for going against the contract. Furthermore, courts that favor decisions reached by mediation will typically turn the original civil mediation agreement into their own ruling, usually with some terms added in for enforcement purposes.

If the mediation was court ordered, then the agreement is filed with the court as the court’s judgment and the case is dismissed. In these cases, the agreement is a legally binding and enforceable contract. The party that breaks this agreement could be held in contempt of court pays some heavy fines, and possibly be placed under civil arrest.

Mediation fees

  • The amount of the administration fee shall be 0.10% of the value of the mediation, subject to a maximum administration fee of $10,000. [13]
  • The value of the mediation is determined by the total value of the amounts claimed
  • Mediators’ fees vary depending on the experience and seniority of each mediator.
  • The normal daily fee for an experienced mediator is approximately $5,000 per day.
  • In addition to the mediation fee, a mediator will charge travel and accommodation expenses if the mediation is outside area.
  • Each party is required to pay their half share of the mediator’s fee in advance of the mediation.

Termination of Mediation

The mediation ends when:

  • A settlement agreement is signed by the parties
  • Either party gives written notice of termination
  • The mediator withdraws their services, in writing; this usually occurs if the mediator considers there is no prospect of resolving the matter.

 Conclusion

If someone has given up on negotiating a settlement of dispute directly with the other party, mediation may be the best way to solve it. Compared to a lawsuit, mediation is quick, private, fair, and inexpensive. And, if dispute is with someone that needs to be dealt with in the future — such as an employer, landlord, neighbor, or co-parent — mediation will help to resolve disagreement without destroying relationship. Mediation also depends on both parties willingness to come to a mutual agreement and a mediator is only to help them to be successful nothing else but without a good mediator a successful mediation is difficult to achieve so for a successful mediation a harmony is needed in every single details.


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[1] See Crowley, T. E. (1994). Settle it out of court: How to resolve business and personal disputes using mediation, arbitration and negotiation, 1st Edition, pg.145. 3rd para.

[2] Ibid., 252.

[3] See University Counselling Service, http://counselling.curtin.edu.au/local/docs/Guidelines%20for%20Mediation.pdf, Accessed: November 24, 2011

[4] See Mediation, http://biztaxlaw.about.com/od/glossarym/g/mediation.htm, Accessed: November 24, 2011

[5] See What is Conciliation, http://www.filmcode.info/conciliation.html#top, Accessed: November 25, 2011

[6] See Conciliation, http://www.arbitration.ie/conciliation,  Accessed: November 25, 2011

[7] See Crowley, T. E. (1994). Settle it out of court: How to resolve business and personal disputes using mediation, arbitration and negotiation, 1st Edition, pg.140. 2nd para.

[8] See Mediation and Collaborative Law, http://public.findlaw.com/abaflg/flg-3-4l-5.html, Accessed: November 26, 2011

[9] See Assefa, H. (1987). Mediation of Civil Wars: Approaches and Strategies-The Sudan Conflict, 1st Edition, pg.95. 2nd para.

[10] See Crowley, T. E. (1994). Settle it out of court: How to resolve business and personal disputes using mediation, arbitration and negotiation, 1st Edition, pg.150. 3rd para.

[11] See Mediation, http://www.lawsociety.org.uk/choosingandusing/howtosolvedisputes/mediation.page, Accessed: November 30,2011

[12] See Mediation and Law, http://law.freeadvice.com/litigation/mediation/agrrement_mediation_enforceable.htm, Accessed: November 30,2011

[13] See Mediation Fees, http://www.wipo.int/amc/en/mediation/fees/, Accessed: November 30,2011