What is the difference between Mediation and Court?

In litigation, the parties retain solicitors / barristers whose focus is to prepare a case which will result in the best decision for their client. Litigation is adversarial and confrontational and frequently demeaning of the other party. In litigation you never know what the outcome will be until the case is ruled upon. There are no guarantees that anyone will come out as the ‘victorious party’. In the long run, everyone pays a price in litigation. Mediation is based on the principle that people are capable of resolving their own disagreements if given the right support. It is non-adversarial, non-confrontational and the parties agree that information will be openly shared in a safe, neutral environment. It is a voluntary and totally confidential process. Either party can withdraw or choose not to participate at any time. The mediator does not judge who is right or who is wrong, but works with parties to help them arrive at a solution to satisfy their interests. No notes or transcripts are kept following the mediation and the mediator will not reveal anything discussed during the mediation to anyone other than the participants. The mediator cannot appear as a witness for either party in any subsequent legal action. The mediator does not represent either party.

What Does Mediation do?

Mediation is "interests-based" which means that it focuses on the underlying interests of the parties, and not their positions. Mediation is used to define complaints, problems and disputes. Mediation allows you to discover options and solutions; manage the resolution process in a ‘win-win’ manner; facilitate mutually agreeable settlements; formulate guidelines and policy; prevent future disagreements.

What are the benefits of Mediation?

Mediation usually provides a quicker, more cost effective and more satisfactory outcome than litigation. It may take months and sometimes years to resolve a disagreement in court, mediation can be paced according to the parties’ needs and schedule. Mediation is voluntary and requires both parties agreement to the make a final resolution. Parties, therefore, are more satisfied with the outcome than with a decision made by a judge or jury. This results in a higher likelihood of compliance with the mutual agreement since parties are usually more likely to comply with a solution to which they have agreed. In mediation, the parties are able to customise the resolution agreement to meet their needs rather than being constrained by the limited options available in court. Most important, parties are more likely to preserve an amicable relationship in the future.

What happens in a Mediation session?

Initially there is an “intake” meeting between the mediator and one of the parties. Thereafter, there are either of two types of meetings - either a joint session or “shuttle” mediation. The former is when everyone is present. The latter type of meeting can also be called a “caucus”. A caucus is a private and confidential meeting between the mediator and each of parties separately. The mediator shuttles between the parties. Anything discussed in a caucus cannot be disclosed to the other party without agreement. In mediation, both types of meetings occur as it helps overcome positional obstacles and helps maintains a forward progress toward a mutually agreeable resolution.

Do I have to come to an agreement in Mediation?

No party is forced to accept a solution that does not meet his/her interests and needs. Parties should understand that the mediation goal is to create a solution that comes as close as possible to a "win-win" agreement, while recognising that parties don't receive everything on their wish list. If there is no resolution, the parties may still go to court to resolve their disagreement.

Does a Mediator appear in Court as a witness?

No. The mediator cannot appear as a witness for either party in any subsequent legal action nor talk to anyone about the case. Additionally, neither the parties nor their solicitors may introduce into evidence what happened or did not happen during the mediation.


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