Mediation is a form of alternative dispute resolution where an independent third party – a mediator, facilities dialogue and resolution between two parties in conflict. Traditionally conflict has often ended up being dealt with in the courtroom through legal proceedings. In recent years mediation has emerged as remarkably successful alternative to litigation. In fact, given the success rates of mediation in conflict resolution, many governments and workplaces have codified mediation as the first step in conflict resolution. Around the world, courts have begun to lament in their closing arguments that mediation was not considered before litigation was pursued. In response, many courts and governments have mandated that attempted mediation be the first step in conflict resolution. Over the past number of years in Ireland, there have been a number of measures put in place to encourage those in conflict to first enter mediation as a means of resolving their disputes. In 2017, the Mediation Act was passed in Ireland, which required legal representation to advise their clients about mediation before commencing legal proceedings. Increasingly where there is a refusal to mediate, this will be taken into account by the court in awarding costs. Mediation is a very successful and beneficial means of conflict resolution that has been gaining in popularity in recent years.
While the concept of mediation as a form of alternative dispute resolution is novel to many, the underlying principles and concepts are not new. Throughout the course of human history in all forms of society, mediation has been present. For example, within a tribal context Elders have long been a voice of reason and a mediating presence disputes where the future of the people depends on harmony and cooperation. Mediation as a form of dispute resolution, whether it be in an interpersonal or professional context, draws on this wisdom that we have been using to cooperate thousands of years.
The Principles of Mediation
Mediation is guided by a number of principles that are integral to the success of the process. Mediation in short is the resolution of conflict and dispute through open dialogue. As such, the impartiality of the mediator is essential to ensure that all parties to the dispute are treated fairly and have equal opportunity to both participate and air their grievances. For mediation to be a success, all parties must feel free to express their concerns and feelings around the issues that have brought them to mediation. Mediation focuses on the needs and interests of the parties and the mediator helps to develop clarity around the goals, options and preferences of the parties in conflict. Without impartiality this process of information sharing would be compromised.
Just as important as the impartiality of the mediator is the assurance of confidentiality. Everything disclosed during the mediation process is confidential and all parties, including the mediator are bound by this. This confidentiality assures that information can be freely shared during a mediation session, without fear of retribution from parties external to the dispute. In instances of workplace mediation, the content of the mediation sessions is also not disclosed to the HR department, even if it was HR who originally referred the case for mediation.
An Alternative to Litigation
The primary alternative to mediation as a means of conflict resolution is litigation. Litigation is costly, and in comparison to mediation, results in an outcome whereby there is only one winner, who is awarded costs or damages by the court. Mediation by comparison is the process where a resolution is sought for both parties – even if this means that both may need to compromise. In many cases, there are countless benefits in engaging in mediation, either as a precursor or alternative to litigation. Perhaps the most obvious benefit is that mediation is far more cost and time effective than litigation. Seeing a case through the courts can be, and generally is, a time consuming and expensive process. Litigation can take months or years to conclude, whereas by comparison, resolutions can often be achieved in a matter of hours through mediation. In litigation, both parties require legal representation and rather than an outcome whereby both parties come to an agreement, a third party decides the outcome and awards costs and damages to one party often at great cost to the other.
The mediation process is designed to be one of empowerment. It allows parties in conflict to be intimately involved in the resolution of their own conflict rather than pass this responsibility to a judge or employer or another non-impartial third party to decide what the outcome or resolution should be. Therefore, mediation is a voluntary process, while parties can be compelled or encouraged to consider mediation, they cannot be forced to do so and may choose to pursue litigation or other alternatives instead. Willingness to participate and share information freely and honestly with a view to coming to a place of agreement is essential. While the mediation process is not always neat or easy, if parties have freely agreed to participate, there is a much greater likelihood of a successful and positive outcome. If one, or both parties were coerced into participating in mediation it is not hard to imagine that they would be less willing to share information openly. This in turn would significantly impact the benefits of mediation.
When a conflict is dealt with in the courts, although technically resolved, can result in negative emotions and resentment. By comparison, mediation works with both parties to find a resolution that they are happy with and that does not result in ongoing tensions. Empowerment is a core principal of mediation. In mediation the parties themselves decide the outcome. In a court room, the presiding judge weighs the arguments that he or she has heard before making a decision. This creates a situation where there is an obvious winner and loser. In mediation, while both parties may need to compromise, there are no ‘losers’. Mediation does not create this imbalance of power that is inherent in litigation. Instead participants are treated equally in a neutral environment where they are allowed to express their emotions, feelings and frustrations. This type of conflict resolution is particularly important for situations where there is an existing power imbalance between the parties in conflict. In mediation, workplace superiority and other factors are not important, what is important is the cause and resolution of the conflict at hand.
At RoundTable, we understand that conflict is normal and unavoidable. Whenever people come together, conflict can arise. Our team of exceptionally qualified mediators have decades of experience in dealing with the resolution of various forms of conflict. Our mission is to facilitate progress through dialogue, openness and communication and we adhere strictly to the principles of mediation. Our mediators are impartial, we do not judge or take one side over another. Despite this we do not consider ourselves entirely neutral, rather we are on the sides of both parties in conflict. We want to help both sides reach a point whereby they are satisfied with the outcome. At RoundTable we do not fear conflict but understand, that when well managed, conflict can lead to growth and progress. We have extensive experience in mediating a wide range of conflicts in the workplace, home and community.