Mediation: Practical tips for help resolving a dispute

28^th December 2020

The editorial unit

The editorial unit

28 December 2020

The term “mediation” is often heard but not always understood. Anyone who has consulted an impartial, trained person in a dispute will know, but without having faced such a situation, many will need guidance – and this is the place to find it. Here there are details about the process, the difference between conciliation vs. mediation, and tips to choose the right type of mediation.

Before jumping into the details about next steps, the first thing to understand is exactly what mediation is.

What is mediation?

It is almost impossible to stay out of any conflict for your entire life. Most of the time, disputes are easily resolved, but, in some cases, the assistance of a third party might be necessary to reach a resolution.

Mediation is a process in which two disputing sides make use of the assistance of a third party that is impartial and trained to resolve the issue and reach a settlement. The third party is experienced using specialised communication and negotiation techniques and helps the conflicting parties find an optimal solution to their problem. The mediation can occur in an informal meeting or a conference, pre-scheduled for the settlement of the dispute.

The procedure is voluntary and non-binding, and, importantly, it keeps the issue confidential and mostly interest-based. Neither disputing party is bound to agreeing on the negotiated settlement and either can terminate the mediation at any time. In most countries, the mediation process is not governed by any specific regulatory act, so the parties are free to decide the rules to which the mediation will adhere.

Any dispute that is either pending in a court for settlement or may need to be filed in a court can be resolved with the help of mediation.

What are the types of mediation and which is most suitable?

When disputants want to avoid a court battle, they look for mediation. There are various types, and the right one depends on the kind of dispute.

• Family mediation
  Family mediation most commonly deals with divorce or separation cases. Issues may include the custody and future of children, property inheritance issues, family businesses, adult siblings’ conflicts, and so on. The mediator works to facilitate a solution that works for both separating parties.

• Workplace mediation
  This type of mediation works for settling disputes among employees or employees and employers. It helps restore working relationships and address behavioural problems among workers. This includes wrongful terminations, labour-management disputes, harassment cases and more.

• Commercial scale and civil mediation
  This is the most cost-effective alternative for resolving disputes among two or more parties at a commercial or civil level. Commercial mediation facilitates conflicting parties in finding solutions between landlords and tenants, builders, contractors and homeowners.

The difference between conciliation and mediation

Mediation and conciliation: both are processes used to resolve issues with the involvement of a third party. They are more or less the same, but some differences exist:

• The role of the third party
  The mediator or the third party only provides a basis for the conflicting parties to achieve the resolution of their solution. On the other hand, the conciliator facilitates the communication between the parties, suggests plausible explanations, and tries to convince the parties to agree on a solution.

• Legal differences
  The Code of Civil Procedure (1908) governs the process of mediation, while conciliation is governed under the Arbitration and Conciliation Act (1996). As such, mediation does not have any dedicated statute for its regulation, whereas conciliation does.

• Confidentiality
  Both mediation and conciliation provide a high degree of privacy in resolving conflicts, but a difference exists: in mediation, the secrecy is based on trust, on the other hand, in conciliation, the law decides the level of confidentiality.

• Enforcement of the agreement
  Mediation is almost a non-binding process, and the agreement cannot be imposed on any party if they disagree. Contrary to that, in conciliation, the agreement is enforced by law that is similar to the Arbitral Award.

The editorial unit