5. “I cannot participate in mediation because I don’t know anything about it.”
Mediation might be unfamiliar for some as it is one of the alternative types of dispute resolution to litigation. They might hesitate to participate because they lack information or understanding regarding the process. However, mediators can orient both sides about the process in separate private preliminary meetings before the joint session starts. Mediators meet separately with the participants to know their side of the story, to inform them about the process and to respond to their questions and concerns about it.
6. “This problem is too industry-specific; the mediator may not understand it.”
For disputes in certain industries or professions, those involved may have doubts on the ability of the mediator to understand the technical details of the issue and facilitate discussion. However, it is not necessary for a mediator to be an expert in the field where the dispute originated.
According to a survey of Mediator Magazine in U.K., corporate users do not necessarily need an “expert” mediator; what they need is someone that can understand the human dimension of conflicts to be able to resolve them. An expert mediator might stick to the technical aspects of an issue, while a non-expert may look deeper into the root of the conflict to facilitate resolution. “A lack of industry expertise has never caused a failure of the mediation process,” said Patrick Deane, senior counsel of Nestle.
When taking on a case, mediators usually prepare by studying all the technical and legal aspects of the case to get a clear understanding of the conflict. They may also allow parties to bring an expert on board and consult with them if the case becomes too complicated. There are advantages if the participants hire only one expert for their dispute, to maintain neutrality and to save on costs. At the end of the day, a more creative outcome is possible if mediated without being a subject matter expert.
7. “My lawyer discourages me to try mediation.”
Lawyers can become apprehensive or critical about mediation because it is an alternative to the structured environment of the court. They are worried that their clients might be easily pressured, manipulated or verbally abused by the other side. They fear mediation may also limit the time for the discovery process and compromise their clients’ interest let alone their rights and entitlements. Additionally, the client may see mediation as a sign of weakness, which could hurt the reputation of the lawyer and hurt the demand for his or her services in the future.
On the contrary, mediation can be beneficial for lawyers. By encouraging clients to try mediation, they are offering them a cost-effective and faster way to resolve dispute; which can enhance their reputation. On worries about abuse, the mediator can address this by setting out guidelines for conduct, including the lawyers in the joint session if the participants wish, calling for a break whenever the session gets heated and levelling the playing field during the negotiation. Lawyers can also look after their client’s interests because participants can consult with their counsel prior and during mediation.
8. “I am not sure if mediation is truly confidential.”
Participants can be sure about the confidentiality in mediation because there are rules that protect the exchange of information from being disclosed in public. Confidentiality is actually one of the most important features of mediation because it allows both parties to be candid to the mediator in joint sessions and private meetings. Once mediation begins, the exchange of information is granted the “without prejudice” privilege; which means that any information given cannot be used in court. Confidentiality is agreed to by everyone in the spirit of the genuine attempt to resolve the dispute. Aside from this, confidentiality in mediation is also preserved through a contractual agreement; where participants who sign the agreement to mediate are bound to keep the discussion off the record. Contractual agreements also give the mediator the right to maintain confidentiality of what transpired in mediation. Even if this is tested by a mediator being subpoenaed, it is usual mediation practice to destroy all notes and records of the mediation after mediation and the only possible benefit of calling the mediator to give evidence is the memory of the mediator which may not be so reliable without the benefit of a file.
9. “The outcome in mediation is non-binding, so it may not resolve this dispute.”
The resolution or outcome from mediation is indeed non-binding so that the mediator does not prejudice their impartiality or independence. However, the recorded outcome can be reduced into writing to make the agreement admissible in court as a Deed or Orders of Court. Once all those involved sign the written Orders by Consent or Deed prepared by lawyers, the document is considered a contract. Anybody who breaches its terms may be taken court. Lawyers for the parties can legally formalise the agreement once a resolution is reached in mediation, if they wish.
The Legal Deed or Orders can contain legal terms such as mutual releases of liability, dismissal of claims, default clauses and other legalese. It may also have a provision for encouraging both sides to return to mediation if disputes arise in the future.