Civil Engineering Reference
In-Depth Information
3.3
Flexibility in process and outcome
Chapter 2 compared the resolution options available to disputing par-
ties, from 'informal' conventional negotiation to 'formal' litigation. One
of the benefits of mediation is flexibility, both of the process and, as
mentioned above, of the outcomes.
The conventional mediation process is covered in detail in the next
chapter, but the overall principle is that it can be adapted to suit the
needs of the parties and the dispute. Most mediations have an initial
joint meeting, but that does not have to be the case - sometimes parties
are so wound up that they cannot bear to be in the same room. That usu-
ally changes as the mediation progresses and it is very likely that joint
meetings are held later in the process. A conventional mediation will
follow the initial joint meeting with a series of private meetings where
the mediator explores what is important to the parties and what their
real needs are. Rarely, the initial joint meeting continues through the day
and the need for private meetings does not arise. Sometimes all that is
necessary is to get the parties talking to each other again, and they are
then able to work out a solution together.
It may be sensible to hold pre-mediation meetings to plan the day
and to get initial issues cleared away. It may also be sensible to hold pre-
liminary meetings - called 'history days' - in more complex disputes,
so that everyone involved can have their say and thus enable the me-
diation proper to engage a much smaller number of people who can
concentrate on the settlement negotiations, and the future. Mediation
days can be phased to allow further investigation or actions or to allow
specific people (such as experts) to attend for part of the process.
Experienced mediators should be prepared to treat the mediation
process as something that can be tailored to suit the parties and their
particular dispute. Although the normal accepted process for commer-
cial mediation is something that is tried and tested and proven to
work, there can be many variations that make the parties more com-
fortable with the process and give them the best chance of negotiat-
ing a deal. Provided the mediator is always even-handed, anything is
possible.
3.4
Finality of outcome
What mediation offers is finality. All the risk of what a third party might
decide is removed. The outcome is entirely in the hands of the parties,
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