Mediation and Conciliation are similar in nature: Discuss in reference to the similarity and the legal effect of mediation agreement
1.1 Mediation :
Mediation may be thought of as “assisted negotiation(1).” Negotiation may be thought of as “communications for agreement (2).” Hence, mediation is “assisted communications for agreement.” It is an effective way of resolving disputes without the need to go to court. It involves an independent third party – a mediator – who helps both sides come to an agreement. Mediation is an alternative dispute resolution (ADR) process in which two or more parties meet with a mediator to resolve their differences and come to an agreeable solution to the problem, such as marital settlement agreements. The mediator is an outside party, hired by the group involved, who advises each side and helps the session come to an end as quickly as possible, Mediation is a voluntary process in which two or more parties involved in a dispute work with an impartial party, the mediator, to generate their own solutions in settling their conflict. Unlike a judge or an arbitrator whose decisions subject one party to win and the other party to lose, mediation is about finding a solution that works for both parties.
?(1) Assisted Negotiation is a process where parties negotiate and settle their issues, disputes or grievances. Parties communicate on the secure ODR WORLD web communications page to negotiate. There is no third party intervention.
?(2) Communication remains the most powerful motivator in life. One communication can change the direction of a person’s life .The key to communication is not control. It is agreement. To overcome resistance more effectively with communication than can with force, because with communication, you can establish agreement with other people, and that reduces the effort in living.
Mediation is always an option if you are thinking about taking dispute to court . Other signs may be if the dispute has been ongoing, if want to preserve a relationship being affected by the conflict, if the dispute is upsetting and affecting daily life, if cannot afford the time and cost involved with litigation, if would like to speak to the other party so they may hear your concerns, or if would like to resolve the dispute without a third party judgment. Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties tonegotiate their own settlement (facilitative mediation)(3). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation)(4). Mediation has a structure, timetable and dynamics that ordinary negotiation lacks. The process is private and confidential. The presence of a mediator is the key distinguishing feature of the process. There may be no obligation to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them. It is a process of dispute resolution that involves a trained third party who works with both sides of the dispute in an informal discussion, to help resolve the dispute.
?(3) Facilitative Mediation is a way of returning control to the parties. In a lawsuit, the court makes a determination or judgment that is imposed on the parties. In mediation, the resolution will be acceptable to all parties or it can be rejected by any of the parties in the dispute. If a mutually satisfactory resolution or mediated agreement is not reached, the parties still have the option to pursue a lawsuit. There is no harm in trying mediation.
?(4) Evaluative mediation is generally understood to be a process which may include an assessment by the mediator of the strengths and weaknesses of the parties’ cases and a prediction of the likely outcome of the case. While I am in favor of having parties choose any neutral process they desire, there must be clarity and agreement among the neutral and the parties as to what the process is and what it is not. I fear that parties and mediators do not have the same expectations regarding evaluative mediation.
Conciliation is negotiation and discussion between both parties with a Conciliator assisting them. It is a process where a commissioner meets with the parties in dispute, and explores ways to settle the dispute by agreement . Conciliation offers a more flexible alternative to arbitration(1) as well as litigation, for resolution of disputes in the widest range of contractual relationships(2), as it is an entirely voluntary process. The matter is settled at the threshold of the dispute, avoiding protracted litigation efforts at the courts. As conciliation can be scheduled at an early stage in the dispute, a settlement can be reached much more quickly than in litigation. Conciliation enhances the likelihood of the parties continuing their amicable business relationship during and after the proceedings . Creative solutions to special needs of the parties can become a part of the settlement. Conciliation is a simple and efficient way to settle your proceeding without having to go through a hearing. Conciliation encourages dialog. It takes place in private, in the presence of an administrative judge who acts as a conciliator. Everything that is said or written down during the conciliation is confidential. If conciliation fails, that is to say, if you cannot reach an agreement with the representative of the department, agency or municipality, you still have the possibility of going to hearing. Conciliation allows you to play an active role in resolving case: in effect, it is not the conciliator(3) who decides on a solution, but the people who participate in the conciliation. The purpose of conciliation is to bring the different parties together to look for ways to resolve the dispute.
?(1) Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons by whose decision they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.
?(2) Court enforcement and private enforcement are not alternative contract enforcement mechanisms, but are used jointly by transactors to define the self-enforcing range of a contractual relationship. Within this framework contract terms economize on the limited amounts of private enforcement capital possessed by transactors, either by directly controlling transactor behavior or by shifting private enforcement capital between transactors to coincide with likely future market conditions. Hold-ups occur when market conditions change sufficiently to place the relationship outside the self-enforcing range. This probabilistic view of hold-ups is contrasted with opportunism more generally and with moral hazard behavior.
?(3) A conciliator assists each of the parties to independently develop a list of all of their objectives . The conciliator then has each of the parties separately prioritize their own list from most to least important. He/She then goes back and forth between the parties and encourages them to “give” on the objectives one at a time, starting with the least important and working toward the most important for each party in turn.
Conciliation looks for common ground to help resolve the matter to the satisfaction of both parties so that both can move beyond the dispute. As the conciliation process(1) allows for both parties in the dispute to have their say, it is possible for each side to come to a better understanding of the other’s position. This can help to eliminate misunderstandings based on incorrect assumptions or information and to achieve a real change in attitude. All information gathered in the conciliation process is kept confidential and is not made available to court proceedings. Conciliation is completely voluntary. Should the parties reach a settlement, the agreement signed by the parties is a contract and is legally binding. Conciliation settlement can be in the form of apology, changes of policies and practices, review of work procedures, re-instatement, monetary settlement, etc. If conciliation is not successful, complainants can apply to the Complaints Committee(2) for legal assistance.
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 endeavour to reach an agreement. In the event that agreement is not reached at conciliation the Conciliator may make a recommendation.
Conciliation helps different parties to negotiate a settlement by:
— identifying issues and understanding the facts and circumstances
— discussing problems
— understanding needs of the parties
— reaching a mutually acceptable agreement
———————————————————————————?(1) The conciliation process is closely linked to the hearing process, rather than as a separate step of dispute resolution, and is regularly used in conjunction with group listings. Conciliation is also used extensively in matters involving multiple applications about the same dispute, for example in residential parks and retirement village matters.
?(2) Complaints Committee, the independent body which deals with complaints from members of the public about the editorial content .
Are mediation and Conciliation the same ?
Mediation and conciliation are basically the same, though both names are used. These involve an independent mediator(1) . They will help you and the other person or company find a solution to the problem. The people involved in the dispute, not the mediator, decide what will happen and the terms of any agreement. But the process is voluntary so you cannot force the other person or organisation to take part. Mediation and conciliation themselves are not binding, and what is said in mediation or conciliation is confidential, so it cannot be used in court later unless both sides agree that it can. People tend to keep to an agreement reached through mediation or conciliation, because they have prepared its terms themselves. However, if you want, you can ask the court to turn an agreement you make in mediation and conciliation into a consent order, which can be enforced through the court.
Conciliation is similar to mediation. Both words describe the same process, but conciliation is normally used when there is a potential or actual claim to an Employment Tribunal, rather than more general employment problems. Conciliation is a voluntary process whereby the conciliator, a trained and qualified neutral, facilitates negotiations between disputing parties and assists them in understanding their conflicts at issue and their interests in order to arrive at a mutually acceptable agreement. Conciliation involves discussions among the parties and the conciliator with an aim to explore sustainable and equitable resolutions by targeting the existent issues involved in the dispute and creating options for a settlement that are acceptable to all parties.
?(1) Independent Mediators is a group of leading, full-time commercial mediators whose independent practices are centrally managed. When Conflict exists in all organisations. Most of the time, conflict is managed through negotiation. When communication and negotiation become difficult or break down altogether, disputes arise and relationships are damaged. Involving anindependent, impartial third party helps people to negotiate with each other and find a way forward, by using professional independent conflict resolution techniques.
The conciliator does not decide for the parties, but strives to support them in generating options in order to find a solution that is compatible to both parties. The process is risk free and not binding on the parties till they arrive at and sign the agreement. Once a solution is reached between the disputing parties before a conciliator, the agreement had the effect of an arbitration award and is legally tenable in any court in the country. Most commercial disputes, in which it is not essential that there should be a binding and enforceable decision, are amenable to conciliation. Conciliation may be particularly suitable where the parties in dispute wish to safeguard and maintain their commercial relationships.
CONCILIATION / MEDIATION are often terms used interchangeably. A confidential, voluntary dispute resolution process(1) and private dispute resolution process(2) in which a neutral person helps the parties to reach a negotiated settlement. This method provides the parties with an opportunity to negotiate, converse and explore options aided by a neutral third party, the conciliator, to exhaustively determine if a settlement is possible. The conciliator is not given any power to impose a settlement. His function is to try to break any deadlock and encourage the parties to reach an amicable settlement by acting as a conduit for communication, filtering out the disturbing elements. A mediator assists the parties in identifying and articulating their own interests, priorities, needs and wishes to each other.
———————————————————————————-?(1) The voluntary dispute resolution process consists of seven components: (a) process initiation (initiation and response letters), (b) settlement meetings, (c) pre-initiation meeting, (d) situation assessment, (e) mediation, (f) advisory decision-making, and (g) reference to other dispute resolution processes (judicial, administrative, or arbitration proceedings). Components (a) and (b) are required while components (c), (d), (e), (f), and (g) are optional.
?(2) The private dispute resolution process initiatives operate outside the organization against which the complaint was made, and outside the courts, although there may be legal implications that result from resolving disputes this way.Examples include third-party mediation, arbitration, tribunals, councils and external ombudsmen.
Mediation is a “peaceful” dispute resolution tool that is complementary to the existing court system and the practice of arbitration. Arbitration and mediation both promote the same ideals, such as access to justice, a prompt hearing, fair outcomes and reduced congestion in the courts. Mediation, however, is a voluntary and non-binding process(1) – it is a creative alternative to the court system. Mediation often is successful because it offers parties the rare opportunity to directly express their own interests and anxieties relevant to the dispute. In addition, mediation provides parties with the opportunity to develop a mutually satisfying outcome by creating solutions that are uniquely tailored to meet the needs of the particular parties. A mediator is a neutral and impartial person; mediators do not decide or judge, but instead becomes an active driver during the negotiation between the parties. A mediator uses specialized communication techniques and negotiation techniques to assist the parties in reaching optimal solutions. Mediation is a structured process with a number of procedural stages in which the mediator assists the parties in resolving their disputes. The mediator and the parties follow a specific set of protocols that require everyone involved to be working together. This process permits the mediator and disputants to focus on the real problems and actual difficulties between the parties. Moreover, the parties are free to express their own interests and needs through an open dialogue in a less adversarial setting than a courtroom. The main aim of mediation is to assist people in dedicating more time and attention to the creation of a voluntary, functional and durable agreement.
———————————————————————————-?(1) non-binding is a process which is conducted as if it were a conventional arbitration, except that the award issued by the tribunal is not binding on the parties, and they retain their rights to bring a claim before the courts or other arbitration tribunal; the award is in the form of an independent assessment of the merits of the case, designated to facilitate an out-of-court settlement. State law may automatically make a non-binding arbitration binding, if, for example, the non-binding arbitration is court-ordered, and no party requests a trial de novo (as if the arbitration had not been held).
The parties themselves posses the power to control the process- they reserve the right to determine the parameters of the agreement. In mediation, the parties also reserve the right to stop anytime and refer a dispute to the court system or perhaps arbitration. In addition to economic and legal skills, mediators are professionals who possess specialized technical training in the resolution of disputes. A mediator plays a dual role during the mediation process- as a facilitator of the parties’ positive relationship, and as an evaluator adept at examining the different aspects of the dispute. After analyzing a dispute, a mediator can help parties to articulate a final agreement and resolve their dispute. The agreement at the end of the mediation process is product of the parties’ discussions and decisions. The aim of mediation is to find a mutually satisfactory agreement that all parties believe is beneficial. Their agreement serves as a landmark and reminds parties of their historical, confrontational period, and ultimately helps them anticipate the potential for future disputes. Generally, an agreement reached through mediation specifies time periods for performance and is customarily specific, measurable, achievable, and realistic. It is advisable for the parties to put their agreement in writing to create tangible evidence that they accomplished something together. The written agreement reminds the parties of their newly achieved common ground and helps to prevent arguments and misunderstandings afterward. Most importantly, a written agreement provides a clear ending point to the mediation process. The agreement binds the parties contractually. In case of disputes concerning compliance with the mediated agreement or implementation of a mediated agreement, the agreement is enforceable as a contract, as it would be in cases of the non-fulfilment of any ordinary contractual provision. Enforceability is necessary for mediation, as an ADR process, to possess any legal strength or to impose any liability on the parties. It should be noted that, in the United States, compliance with mediated settlement agreements is high because the parties, themselves, create the terms of the settlement agreement. Thus, enforcement proceedings are relatively rare because the parties voluntarily carry out their own agreements.
Conciliation is another dispute resolution process that involves building a positive relationship between the parties of dispute, however, it is fundamentally different than mediation and arbitration in several respects. Conciliation is a method employed in civil law countries, like Italy, and is a more common concept there than is mediation. While conciliation is typically employed in labour and consumer disputes, Italian judges encourage conciliation in every type of dispute . The “conciliator” is an impartial person that assists the parties by driving their negotiations and directing them towards a satisfactory agreement. It is unlike arbitration in that conciliation is a much less adversarial proceeding; it seeks to identify a right that has been violated and searches to find the optimal solution.
Conciliation tries to individualize the optimal solution and direct parties towards a satisfactory common agreement. Although this sounds strikingly similar to mediation, there are important differences between the two methods of dispute resolution. In conciliation, the conciliator plays a relatively direct role in the actual resolution of a dispute and even advises the parties on certain solutions by making proposals for settlement. In conciliation, the neutral is usually seen as an authority figure who is responsible for the figuring out the best solution for the parties. The conciliator, not the parties, often develops and proposes the terms of settlement. The parties come to the conciliator seeking guidance and the parties make decisions about proposals made by conciliators. In this regard, the role of a conciliator is distinct from the role of a mediator. The mediator at all times maintains his or her neutrality and impartiality. A mediator does not focus only on traditional notions of fault and a mediator does not assume sole responsibility for generating solutions. Instead, a mediator works together with the parties as a partner to assist them in finding the best solution to further their interests. A mediator’s priority is to facilitate the parties’ own discussion and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair, durable, and workable. The parties play an active role in mediation, identifying interests, suggesting possible solutions, and making decisions concerning proposals made by other
parties. The parties come to mediator seeking help in finding their own best solution. Also the role of the attorneys (1) is different in mediation. Attorneys are more active in mediation in generating and developing innovative solutions for settlement. In conciliation, they generally offer advice and guidance to clients about proposals made by conciliators.
Conciliation and mediation both look to maintain an existing business relationship and to rekindle a lost balance of power between two parties. These concepts are sometimes used as synonyms, but they do indeed vary substantially in their procedures. In mediation, the mediator controls the process through different and specific stages: introduction, joint session, caucus, and agreement, while the parties control the outcome. By contrast, in conciliation the conciliator may not follow a structured process, instead administering the conciliation process as a traditional negotiation, which may take different forms depending on the case. Conciliation is used almost preventively, as soon as a dispute or misunderstanding surfaces: a conciliator pushes to stop a substantial conflict(2) from developing. Mediation is closer to arbitration in the respect that it ”intervenes” in a substantial dispute that has already surfaced that is very difficult to resolve without “professional” assistance. The parties approach mediation as an alternative method to resolve their dispute, due to the fact that they both recognize that the conflict has grown potentially serious enough for litigation. Mediation may be used, however, any time after the emergence of a dispute, including the early stages.
?(1) Attorney may refer to: Attorney at law, a lawyer in some countries,Attorney general, the principal legal adviser to a government, Attorney-in-fact, a person authorised to act on someone else’s behalf in a legal or business matter by a power of attorney, Attorney a person, who may be but is not necessarily a lawyer, who is authorised to act on someone else’s behalf in either a business or a personal matter
?(2) Substantive conflict can occur on just about any issue, but its moving force is that the two parties simply disagree about an issue. This can be a good thing or a bad thing. Handled correctly parties in conflict can create, for themselves and those around them, the ability to resolve an issue with something creative, something better than either party’s original position
conciliation was thought of as being a more informal, more reactive response where there was not necessarily a formal agenda, and where the particular steps that one goes through in the mediation process would not necessarily be there. In other words, it wouldn’t be a formal convening. There may not be a bill of particulars, there may not be a kind of recitation of the ediation process(1)and probably in a conciliation, not a written formal agreement. There may or may not be any kind of self-enforcing mechanism as a part of it, whereas mediation would have a much more formal kind of construct. So in my sense, the comparative informality of conciliation, from that definitional perspective, meant that the intervener could be a little bit more informal, could have the latitude to advocate for one side or one idea in ways that you couldn’t do in a more formal mediation because expectations of behavior of the third party would be different. So in the formal mediation, there was an expectation. These are all generalities – there are huge variations on both themes. Some people have taken mediation nowadays much more broadly. I think mediation has a much more generous interpretation than it may have had in the early days of the conflict resolution business, in the professional part of the field. Formal mediation(2) restricted the behavior, not only of the parties, but also of the third party as well. “Conciliation” sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes.<href=”#cite_note-2″> Neither process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.
?(1) The mediation is best hosted in a neutral environment and involves five different stages including the opening statement from the mediator, the opening statements of both parties, a joint discussion followed by private caucus by each party with the mediator and a closure of the mediation. The entire process takes between 1 ½ to 3 hours and in the event that a resolution has not been achieved, the mediator at this time may suggest making arrangements for a further face to face, or an alternative plan of action.
?(2) Formal mediation is provided by the Mediation Committee as a final stage of the content-dispute resolution process. Formal mediation is only suitable for disputes over article content, so requests to mediate grievances with other editors will not be accepted. It is governed by the Mediation Committee’s policy, and so requests for mediation must satisfy the <href=”#Preconditions_of_mediation” title=”Wikipedia:Mediation Committee/Policy”>preconditions provided for by that policy.
Merits of mediation
Mediation is easy, immediate and accessible.
· can be started quickly
· lets both parties become directly involved in reaching a settlement
· helps parties explore alternatives they might not have considered on their own
· is confidential and informal
· is potentially cost-effective compared with legal action
· doesn’t prejudice your rights in any way.
· Economical Decisions
· Rapid Settlements
· Mutually Satisfactory Outcomes
· High Rate of Compliance
· Comprehensive and Customized Agreements
· Greater Degree of Control and Predictability of Outcome
· Personal Empowerment
· Workable and Implementable Decisions
· Decisions that Hold Up Over Time
· The process promotes communication and cooperation.
· It allows the parties, not the court, to make decisions affecting their future.
- It promotes positive family relationships by reducing conflict.
- 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.
- Mediation usually costs less than litigation.
Besides these , There are many advantages to mediation over other forms of alternative dispute resolution (ADR) or civil litigation. Below are some of the major advantages that mediation and binding mediation offers to the construction industry as an alternative dispute resolution option. Keep in mind that a judge’s responsibility is to interpret and rule on matters of law. The mediators’ responsibility is to assist the parties in settling their dispute and be fair and equitable to all parties if it is a binding mediation.
1. Mediation is much less costly than civil litigation for many reasons:
a. Most mediators who specialize in construction charge by the hour and the mediation usually is completed in one or two days.
b. As most construction mediations are conducted in one or two days and most certainly less days than civil litigation, the cost of your time away from business will be minimal.
c. Preparation for mediation is far easier and simpler than is required to prepare for arbitration or litigation.
d. Attorneys are not necessary but may participate at the request of a party.
e. If you choose binding mediation, you will have a similar finality as binding arbitration offers without the formalities and costs associated with binding arbitration.
f. In many cases, the mediation can be held at the residence involved rather than needing to schedule a jobsite visit and a separate arbitration hearing at a neutral location or litigation that must be held at a court of jurisdiction.
g. In most cases, the mediator is well-versed in the issues that are in dispute and can assist the parties in the reality of their opinions and positions.
h. There should be no court filing fees and related expenses.
2. Mediation is a much faster process.
3. In mediation, the parties are full participants and can express their own opinions and concerns, where in civil litigation the parties’ attorneys are the only ones who represent their party unless the party “takes the stand” and is subject to cross-examination by the opposing attorney.
4. Mediation allows the opportunity for parties to work together and reach a settlement and continue to work together to complete the construction project, very often with a good customer referral at the end of the job. Typically, if the parties end up in litigation, their relationship immediately comes to and end.
5. After there is a settlement, if other items come into dispute, a new mediation can be scheduled without affecting the prior settled items. If a major dispute develops in the early stages of a construction project, a quick, low cost mediation can be scheduled which will allow the project to continue in a timely manner.
6. Mediation is so informal that if a construction contract does not recognize an alternative dispute resolution option; mediation may be scheduled by mutual agreement of both parties to the contract.
7. In mediation, both parties have the opportunity to check the background and experience of the mediator unless the mediator is specified in the dispute resolution section of their contract.
8. Mediation is a private process and not subject to public knowledge and possible media attention as can be the case with civil litigation.
9. If the mediation is scheduled as a binding mediation or a med-arb process, it is virtually a guarantee that there will be a full settlement on all issues by the end of the binding mediation or med-arb process.
10.If there is a full settlement or if certain items are settled and an agreement is written, that agreement is enforceable in court, if necessary,
and there will generally be no appeals process. In civil litigation, there are several levels of appeals available in the continuing judicial process.
11. Mediation can protect parties from some of the extra problems associated with civil litigation(1),suchas punitive awards, if applicable.
12. There is no jury in mediation, and the risk of a huge, unwarranted award is greatly reduced by the fact that an experienced mediator who has a full comprehension of the construction industry is usually a seasoned professional who is unlikely to be swayed by emotion (2)or superficial arguments.
13. Discovery is limited in mediation, which usually means that disputants’ attorneys, if involved in the mediation, will rarely pursue the burdensome fishing expeditions that can occur in ordinary litigations(3).
14. Class action litigation is relatively unheard of in mediation, which reduces incentives to plaintiffs’ lawyers, and can avoid the danger of a large award based on an accumulation of claims.
15. Insurance companies are more likely to write policies for construction companies who specify an ADR process in their construction contract for most of the above reasons.
16. Today, most of the construction cases that are filed with a court of jurisdiction are remanded to mediation by the judge to see if a settlement can be reached. If no settlement is reached, the case will then be scheduled for hearing before the court.
?(1) Civil litigation is a legal dispute between two or more parties that seek money damages orspecific performance rather than criminal sanctions. A lawyer who specializes in civil litigation is known as a “litigator” or “trial lawyer.” Lawyers who practice civil litigation represent parties in trials, hearings, arbitrations and mediations before administrative agencies, foreign tribunals and federal, state and local courts.
?(2)Emotion is a complex psychophysiological experience of an individual’s state of mind as interacting withbiochemical (internal) and environmental (external) influences. In humans, emotion fundamentally involves “physiological arousal, expressive behaviors, and conscious experience. Emotion is associated with mood,temperament, personality, disposition, and motivation.
?(3) Ordinary litigation is when there is real damage done, like when a gunshop sells under the table to a knowncriminal. Political litigation is when innocent parties are sued for the purpose of creating enough court costs that they either capitulate to the political pressure or go bankrupt, for example, the bogus lawsuits against firearms manufacturers, importers, distributors and gunshops which did no illegal dealing.
Demerits of mediation
Mediation is not suitable for everyone. It requires both parties being honest and co-operative, eg in disclosing financial information. It also cannot work if there is a lot of hostility or conflict between you. You cannot be forced to attend mediation. A mediator is looking for a solution, but does not give legal advice, so you may feel pressurised to come to agreement that is not fair or safe, eg if you are in a financially weak position, or because you are not aware of your legal rights.
Mediation may also not be suitable if you feel:
- fearful of your ex
- intimidated or bullied by him
- overwhelmed or overpowerd by him
- your life is controlled or restricted by your ex
- your ex partner is alienating your child(ren) away from you
- Because the mediator is neutral, he or she cannot personally advise either party. Thus, the parties must rely on their attorneys to be fully informed of their options.
- If one party has been domineering during the relationship, the other party may not feel as fully capable of expressing important concerns as he or she would if the lawyers were present .While the Mediation process offers parties with disputes many advantages over other dispute resolution procedures, it is important to recognize that Mediation procedures do not always have ideal outcomes.
Mediation can be a problem if one or both parties are withholding information. Another problem with mediation can arise if one party is very passive and likely to be bulldozed by the other. In that situation, the mediated agreement might be lopsided in favor of the stronger party. A good mediator, however, will see to it that a weaker party’s needs are expressed and protected. Mediators should refuse to proceed with mediation if it looks as though one side will take improper advantage of the other.
One more disadvantage of mediation is when one party is very passive and likely to be bombarded by the other side. They may come up with an agreement yet it may be lopsided to favour the more prominent faction. Other manifestations of a great mediator in this scenario are when he/she ensures that both party’s needs are equally articulated and safeguarded, and when he/she would cease to continue with the mediation if one faction would unjustly take advantage of the other.
what are the roles of mediator ?
The mediators come from a mixed group of staff, from a wide range of departments and grades. Mediators will only be appointed to cases where they do not know the parties involved. Mediators are not advocates for either party. They are independent people committed to the process of problem resolution. Mediators work with people to find solutions to the problem that will work for both parties.
The mediator’s role is to:
· help people find the best way to resolve their problems
· encourage parties to identify the real issues
· help the parties explain those issues to each other
· identify points of agreement between the two parties
· help people find a way through their problem that may not seem immediately apparent
· work with people to find answers that reflect good faith and common sense
· provide an assessment of the risks of the problem escalating to the Employment Relations Authority
· seek a resolution that allows both parties to put the issues behind them.
Each employment relations problem is different. The process for each mediation will depend on the needs of the parties and the nature of the problem. Mediation services provide confidential processes where problems can be discussed, issues clarified and a conclusion reached that all those involved can accept.
Mediators can also:
· provide early assistance to parties with or without representatives being present
· make a written recommendation or decision with the agreement of the parties
· record settlements
· perform a range of legislative duties under the Employment Relations Act.
· provide information to unions, to community groups and advisors, to employer organisations or employment law seminars.
– facilitate discussion between the parties
– clarify underlying feelings to help parties understand each other
– support parties to generate ideas and agreements for the future
– remain impartial and non-judgemental
– ensure that both parties get the opportunity to speak and listen
Mediators do not:
– make a judgement or decision, or “take sides”.
– It is not the Mediator’s role to make decisions for the conflicting parties. Mediators do not offer legal advise and they do not try and push the conflicting parties towards any one particular outcome. The mediator does not take the side of any one party. The Mediator has no enforcing powers over any of the involved parties
The primary role of the mediator is to mediate from a position of impartiality, having no vested interest in the outcome of a dispute between parties. The mediator as well as the parties can set the ground rules before the process begins. The mediator shares joint responsibility with the parties for protecting and maintaining the confidentiality of the process. The mediators that serve the program are trained and certified professionals. The mediator will explain how the law will affect unresolved issues between the parties. He/She will not take sides or become invested in any particular outcome of the mediation. While they want to help, in the end, it’s the parties’ lives that are being discussed. The parties need to reach their own conclusions with the assistance of the mediator. The mediator listens without bias.
The parties agree to make full disclosure to each other and to the mediator of all property and income and all debts. This is a requirement in any family law matter. It is also very important for the parties to make full disclosure of all information essential to a successful resolution of the issues. In other words, they need to fully participate in the mediation.
What are the legal effect of mediated agreement and so forth?
Parties who enter into mediation do not forfeit any legal rights or remedies. If the mediation process does not result in settlement, each side can continue to enforce their rights through appropriate court or tribunal procedures. However, if a settlement has been reached through mediation, legal rights and obligations are affected in differing degrees. In some situations, the parties may only wish to have a memorandum or a moral force agreement put in place; these are often found in community mediations. In other instances, a more comprehensive deed of agreement is drafted and this deed serves to bring a legally binding situation. Charlton and Dewdney (2004, p. 126.) point out that a mediated agreement may be registered with the court to make it legally binding and it is advisable to have a lawyer prepare the form or, at the very least, to obtain independent legal advice about the proposed terms of the agreement.
Mediation has opened the door for parties in conflict to resolve their differences through non-traditional judicial forums. Over the last few decades, mediation has brought to light the processes, or alternatives to litigation, that enable parties to resolve their differences without the high cost associated with litigation. An interesting remark made by Spencer and Altobelli (2005, p. 223): “Court systems are eager to introduce mandatory mediation as a means to meet their needs to reduce case loads and adversarial litigation, and participants who understand the empowerment of mediation to self-determine their own agreements are equally as eager to embrace mediation as an alternative to costly and potentially harmful litigation.”
Mediation can be very helpful if you and your spouse want to make decisions in the most cooperative way possible. A trained mediator can work with you to develop a parenting plan for the children and make other decisions. Your lawyer may or may not be with you at the mediation sessions, but if you see a mediator, it’s important that you consult a
lawyer about your rights and responsibilities before signing any separation agreement.
‘’A mediated agreement is legally binding.”
Specifically a mediated agreement is one that all stake-holders(1) 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. As result, it is important for each party in the dispute to fully participate in there solution 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(2) of the final negotiation.
It is not uncommon for disputes of all kinds – business, divorce, child custody,workplace conflicts, and others – that have lingered for months, or even years, without resolution, to reach full agreement in a matter of hours with mediation. At times this expediency can surprise or overwhelm a participant not properly prepared to mediate. All participants should fully understand the efficient nature of mediation so that agreements reached are fully considered.
For those disputes not filed in court, the written mediated agreement is usually considered to be a written contract, and as such is legally binding. Depending on the nature of the agreement and the dispute, if there is a breach of the contract or mediated resolution, the other party can file a claim with the court – as in any legal contract. Since the agreements made in mediation are binding, it is important that parties in dispute come to the mediation prepared and expect to reach full resolution of the issue.
?(1) stake-holders a person, group, or organization that has direct or indirect stake in an organization because it can affect or be affected by the organization’s actions, objectives, and policies.Key stakeholders in a business organization include creditors, customers, directors, employees, government , suppliers, unions, and thecommunity from which the business draws its resources. Although stakeholding is usually self-legitimizing all stakeholders are not equal and different stakeholders are entitled to different considerations.
?(2) ramifications , A development or consequence growing out of and sometimes complicating a problem, plan, or statement: the ramifications of a court decision.. The act or process of branching out or dividing into branches.A subordinate part extending from a main body; a branch.An arrangement of branches or branching parts.
Mediation is a process by which two parties present their dispute to a neutral third party, the mediator. The mediator is not a judge and cannot make any decisions for the parties, but can assist the parties in resolving their dispute. ediation has become an increasingly popular method of cost-effective dispute resolution. By participating in mediation, the parties can work towards an agreement and save time and money which would otherwise be spent litigating their claims. Most mediation problems and issues arise because the mediators lack structural support and a clear understanding of what type of mediator they are. As mediation becomes a more mature area of practice and as the functional framework of mediation is better understood, most of the common problems and issues should be resolved.
The mediator/conciliator shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872, but shall be guided by the principles of fairness and justice, having regard to the rights and obligations of the parties, usages of trade, if any, and the circumstances of the dispute(s). The mediator/conciliator shall attempt to facilitate voluntary resolution of the dispute(s) by the parties, and communicate the view of each party to the other, assist them in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and generating options in an attempt to solve the dispute(s), emphasizing that it is the responsibility of the parties to take decision which effect them; he shall not impose any terms of settlement on the parties. The termination of the Mediation or Conciliation any party may terminate the mediation or conciliation, by written notice to each other party and the Mediator or Conciliator . The Mediator or Conciliator may terminate the mediation or conciliation, by written notice to each of the parties, if the Mediator or Conciliator forms the opinion that the further conduct of the process will not be productive in achieving a resolution of the Dispute.
1 www.synergymedmw.com, www.mediation.com, www.mediate4you.com and www. mediate 4u .info for more information on the mediation process.
2. www.ORD solutions.com
3. www. .wikipedia.org ; . www.mediate.uci.edu
9. Noaks, J. & Noaks, L. (2009). “School-based peer mediation as a strategy for social inclusion”. Pastoral Care In Education 27 (1): 53-61.
10 I.C.C § 1341, paragraph 2, and 1469, paragraph 3, nn.18 and 19,
11. California Evidence Code Sections 1115-1128).
12. According to § 1965 of the Italian Civil Code (I:C.C.),
13. Download Mediation and Conciliation Rules document as a Adobe Acrobat file (PDF format, 32K)
14.. http://www.mediate.com/articles/sgubiniA2.cfm(Mediation and Conciliation: differences and similarities from an International and business perspective)
15. Zutter, Deborah. Preliminary Mediation Practices. Bond University, Australia :Unpublished Thesis, 2004.
18. http://www.findlaw.co.uk ;; http://www.nadrac.gov.au/www/nadrac/nadrac.nsf
20 www.lawfirms.com. ;; http://en.wikipedia.org