Mediation is the way forward
Written by Riyaz Jariwalla on 30 July 2008« Return to Reading Room
Mediation is the process of resolving a dispute by using a third party who is "impartial". The purpose of mediation is to find terms of settlement that will lead to an acceptable resolution to the dispute or claim. The process of mediation involves parties assessing the claim against any defence to solve the overall dispute.
The emphasis is on rebuilding the relationship between parties rather than placing accusing or placing the responsibility on the other party.
A mediator is appointed by agreement. The mediator will inquire as to how the party views the current situation and figure out what they expect to achieve at the end of the mediation process. Information obtained at this point of the process is private and confidential unless otherwise agreed. Each party, before the mediator, takes turns to discuss the dispute. The mediator will ensure that both parties understand what the other party is saying and allow them to reply to any statement made.
If an agreement is reached, it is drafted up in written and signed by both parties and the mediator.
NOTE: this is not a binding contract or enforceable in UK court until both parties decide to make it a legal contract. This is normally achieved by the parties'; solicitors or legal representatives drafting a consent order or deed of settlement. Once approved, the parties will sign the consent order or deed of settlement. But before this the agreement or any promise does not prohibit either party from finding other ways of dealing with the dispute.
If a consent order or deed of settlement is signed the signed document is filed with the court for the court's seal. This makes is official, formal and binding. Any party that fails to comply hereon with the sealed consent order or deed of settlement will be in contempt and in breach of a court order. This is serious.
The key advantages to using mediation are (1) the quickness of how a resolution is reached - rather than a lengthy and expensive court proceedings. Mediation usually takes about 4 to 6 weeks, but can be much quicker if the parties are open to the process. The mediation is normally listed for one day and over in one day; and (2) the cost of litigation is largely avoided.
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