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What is mediation and how does it work in civil and commercial law cases?

Allene Predohl

Mediation is a means of dispute resolution where a third party neutral mediator assists parties in a civil or commercial law case to reach a mutually acceptable resolution. Unlike litigation or arbitration, mediation is a voluntary process in which the mediator does not make any decisions for the parties, but rather facilitates communication and negotiation between them. It is an increasingly popular alternative to traditional litigation because of its cost-effectiveness, efficiency, and flexibility.

The mediation process begins with a pre-mediation stage, where the parties and the mediator identify the issues to be resolved and agree on the rules and procedures to be followed. This stage also involves the signing of a mediation agreement, which outlines the confidentiality and voluntariness of the process.

The second stage is the opening statement, where parties are given a chance to explain their perspective and state their issues. The mediator then takes control of the discussion and guides the parties towards identifying their interests, rather than their positions. This stage establishes the agenda for the remainder of the mediation session.

The next phase is the exploration of alternatives, where the mediator and parties brainstorm and discuss possible solutions to the issues at hand. This stage often involves the use of creative techniques such as caucuses, where the mediator meets privately with each party to explore additional options for resolution.

Once the parties have identified possible solutions, they move into the negotiation stage, where they begin to discuss and refine the proposed solutions until a mutually acceptable agreement is reached. This is often the most challenging part of the mediation process, as parties may have to make concessions and compromise to achieve a resolution.

Finally, the mediation process concludes with the drafting and signing of a settlement agreement that outlines the terms of the resolution. This agreement serves as a binding contract between the parties.

In summary, mediation is a voluntary and confidential process where parties use a neutral third party mediator to facilitate communication and negotiation to reach a mutually acceptable resolution to their civil or commercial law dispute. It is a cost-effective, efficient, and flexible alternative to traditional litigation, and empowers parties to create their own solutions.