This article discusses who the main gatekeepers of mediation are and why mediation should be encouraged.
Gatekeepers of mediation
Gatekeepers provide advice and advocate for the participants of a mediation. The main gatekeepers to commercial mediation are commercial lawyers/litigators. Based on a New Zealand Commercial Mediation Study, a vast majority of gatekeepers described their knowledge of mediation as extensive.
Research[1] suggests that strong awareness of mediation does not mean that all gatekeepers endorse mediation to their clients. Some commercial lawyers may even discourage mediation using their gatekeeper status. This is likely because they are more familiar with litigation.
Lawyers as gatekeepers are important in the mediation process because they bring important skills to the mediation. Such skills include:
an understanding of legal issues and concepts;
preparing clients for dispute resolution; and
drafting skills.
Therefore, lawyers as gatekeepers can effectively facilitate settlements through mediation and should actively encourage mediation as an alternative to litigation. An adversarial approach, however, undermines mediation and shows a lack of understanding of the benefits of mediation as a dispute resolution process.
It is important to remember that all lawyers have an ethical obligation under Rule 13.4 of the Conduct and Client Care Rules to advise clients about alternatives to litigation where appropriate. They must always act in the best interests of clients regardless of whether it potentially reduces their earnings. For this reason, ignoring mediation may well indicate a breach of the ethical code or a belief that mediation is considered an ineffective form of dispute resolution in the situation.
Why gatekeepers encourage mediation
It is helpful to understand why gatekeepers recommend mediation to their clients. A paper presented to the 2016 Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) annual conference noted that gatekeepers encourage mediation because they want to:
Achieve settlement — according to a research done in 2015[2] , commercial mediators reported settling at least 70% of the cases they mediated.
Save time — a 2012 United States Department of Justice record showed that over 100 years of litigation time was saved by using voluntary alternative dispute resolution.
Save money — a 2012 UK construction dispute mediation survey found that 76% saved more than £25,000 and the top 9% of cases saved over £300,000. It reported “the cost savings attributed to successful mediations were significant…. Only 15% of responses reported savings of less than £25,000; and the top 9% of cases saved over £300,000…”
Engage an experienced mediator with skills and subject knowledge who they have trust and confidence in — according to a Harvard Law School article[5], building rapport is more important to effective mediation than employing specific mediation techniques and tactics. It reported:
“According to a survey by Northwestern University law professor Stephen Goldberg, veteran mediators believe that establishing rapport is more important to effective mediation than employing specific mediation techniques and tactics.
To gain parties’ trust and confidence, rapport must be genuine: “You can’t fake it,” one respondent said. Before people are willing to settle, they must feel that their interests are truly understood.”
Protect the parties from power imbalance — gatekeepers want mediators that can keep the process as fair as possible.
Other benefits of mediation include:
Flexibility
A structured and ethical process designed to preserve relationships.
Certainty and control of the outcome for the parties.
Confidentiality.
Mediation is very beneficial to parties that are motivated to settle and should regularly be encouraged where appropriate. Gatekeepers, particularly lawyers, should increasingly promote mediation to commercial users for further growth of mediation in New Zealand. Mandatory mediation for commercial disputes before the courts could also be introduced.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues. We offer professional, independent, and impartial mediation services to users in a dispute.
Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and gatekeepers, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through mediation.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy is a mediator with all the skills gatekeepers want. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
[1] Dr Grant Morris & Ms Daniella Schroder, LEADR/Victoria University Commercial Mediation in New Zealand Project Report, (June 2015), p5.
[3] Vander Veen, n14, citing: Statistical summary: Use and benefits of alternative dispute resolution by the Department of Justice, (2012). Retrieved from: http://www.justice.goc/olp/adr/doj-statistics.htm.
[4] Vander Veen, n14, citing: Gould, N., King, C. & Britton, P. (January 2010), Mediating construction disputes: An evaluation of existing practice, London: The Centre of Construction Law & Dispute Resolution, King’s College London. Retrieved from: http://www.ciarb.org/information-and resources/2010/02/17/KCL%20Mediating%20Construction%20Complete.pdf
This article discusses the process variations and styles of mediation from Dr Grant Morris and Annabel Shaw’s commentary (A to Z of New Zealand Law — Alternative Dispute Resolution — Mediation (online ed, Thomson Reuters)).
Process variations
There are several variations to the classic model of mediation. The classic model is discussed in our previous issue ‘The process of mediation’. These include co-mediation, telephone mediation, multiparty mediation, shuttle mediation and online mediation.
Co-mediation
Two mediators conduct the mediation in a co-mediation. This may be suitable for a complex mediation with several parties involved. It may also be used if the parties need a specialist mediator. One of the disadvantages of co-mediation is the cost involved. This is not a common commercial mediation model in New Zealand.
Telephone mediation
Telephone mediation may be useful for parties who are uncomfortable communicating in person. One of the disadvantages relates to the quality of engagement between the parties. Online mediation, however, is similar to the classic model. Please see our previous issue How can online mediation be used? for more information on online mediation.
Multiparty mediation
Multiparty mediation could be preferred if there are more than four parties involved. This is because multiparty disputes usually involve several issues and are complex. A more detailed pre-mediation phase is required to identify the relevant parties involved, to reach an agreement about the issues in dispute, and to clarify the authority to settle. Multiple sessions with different parties are common in a multiparty mediation. Multiparty mediations may not be confidential, and it is not a common commercial mediation model in New Zealand.
Shuttle mediation
Shuttle mediation is where the mediator meets with the parties separately. This method is suitable for disputes that require standard negotiation and settlement-focused mediations. Please see our previous issue ‘Overcoming barriers and challenges of mediation’ further information.
Mediation styles
There are a couple of main mediation styles, and each have different objectives. The mediator in a process-oriented mediation facilitates the process and the parties have the responsibility to resolve the dispute. These include facilitative, settlement, transformative and narrative mediation. In a substance-oriented mediation, an expert mediator in the subject matter will recommend how the dispute can be resolved.
Facilitative mediation
Facilitative mediation is the classic style of mediation which is discussed in our previous issue ‘The process of mediation’. This style focuses on the parties’ interests rather than their legal rights or positions. The emphasis is on the process, and the mediator will support the parties to resolve the dispute themselves. This style may be preferred if it is important for the parties to preserve relationships.
Settlement mediation
Settlement mediation is commonly used for commercial and transactional disputes. It focuses on positions rather than interests, and the mediator will actively assist the parties to reach a settlement. This style often involves shuttle negotiation and parties are usually legally represented. While this style has a good settlement rate, it does not necessarily result in a quality settlement.
Evaluative mediation
Evaluative mediation focuses on the parties’ rights and the mediator provides expert advice. The mediator will actively give recommendations, legal opinions and advise on the possible outcomes in court. Parties are often legally represented. There are concerns that this style may undermine parties’ autonomy and is more prone to power imbalances.
Transformative and narrative mediation
In transformative and narrative mediations, the mediator encourages the parties to transform relationships. The mediator will not actively intervene because the focus is on changing relationships rather than on settlement. While this is a good option if parties want to improve relationships, it can be harmful if it is not done well. Depending on the situation, mediators may apply aspects of transformative and narrative mediation.
Conclusion
The best style will depend on numerous factors such as the situation, relevant parties involved, the issue that is in dispute and the type of mediator. Facilitative mediation will be best if the dispute involves multiple complex issues. Settlement mediation can be used to help parties reach an outcome. Evaluative mediation can help parties resolve negotiation impasses, reach a settlement, and receive comments from an expert mediator in the subject matter. Transformative and narrative mediations are great options if parties wish to improve relationships.
It is important that parties are informed about the mediation process regardless of which style of mediation is used.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and representatives, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through mediation.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
At Norling Law, we are passionate about providing our clients with a problem-solving approach to solving legal issues. We use our problem-solving skills in serving our clients on a daily basis.
This article explores the history of mediation and the importance of encouraging mediation.
History of mediation
Mediation is at the heart of the modern alternative dispute resolution (ADR) movement. The development of mediation in New Zealand has been ad hoc and pragmatic and was a response to specific challenges facing the legal system including the expense and delay involved in litigation.
New Zealand’s mediation movement is part of a global trend. The history of mediation dates back to developments in industrial relations in the late 19th century. The modern mediation movement took off in the 1980s and continues to grow.
Academic attention and the formation of professional organisations during the 1980s and 1990s also contributed to the rise of mediation. The two leading ADR professional bodies have been Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) and the Resolution Institute.
Mediation processes began to be incorporated into various statutes. In some areas, such as family and employment law, mediation challenged litigation’s monopoly. However, mediation is unlikely to completely replace litigation as the dominant form of dispute resolution anytime soon.
Commercial mediation
While statutory regimes have been the dominant driver of the modern mediation movement, there has been reluctance to take a leadership role in commercial law mediation. This has contributed to the particularly ad hoc growth of private mediation in relation to commercial disputes, which make up the majority of civil cases.
Historically, commercial disputes have been resolved in the first instance through negotiation. If negotiation failed, litigation or arbitration would commence.
Commercial mediation increased during the 1990s.[1] Many mediations resulted from business people seeking to avoid expensive and time-consuming litigation. It was created to help users resolve disputes. Mediations also resulted from commercial contracts dispute resolution clauses, which stated that mediation would be used in the event of a dispute.
Conclusion
Reports recommended that the courts take a more systematic approach to diverting cases to mediation to relieve the pressure on the court system and reduce expense and delay.[2]
Lawyer have an obligation to inform parties of ADR options throughout the civil procedure process. Rule 13.4 of the Conduct and Client Care Rules provides that a lawyer assisting a client with the resolution of a dispute must keep the client advised of alternatives to litigation that are reasonably available to enable the client to make informed decisions regarding the resolution of the dispute.
These developments have the potential to increase commercial mediation given the dominance of commercial matters in civil cases.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
Mediation is a dispute resolution process that could help to avoid costs and achieve a prompt resolution. Norling Law supports mediation as an efficient way of solving legal issues and offers independent and impartial mediation services.
Wendy has extensive experience as a commercial mediator, including mediations conducted online. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the Arbitrators and Mediators Institute of New Zealand (AMINZ). Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
Reference:
Dr Grant Morris and Annabel Shaw The History and Development of Mediation (online looseleaf ed, Thomson Reuters) at [4.M.3].
Footnotes:
[1] Dr Grant Morris “Towards a History of Mediation in New Zealand’s Legal System” (2013) 24 ADRJ 86 at 97.
[2] Courts Consultative Committee Court Referral to Alternative Dispute Resolution: A Proposal to Extend the Use of Alternative Dispute Resolution in Civil Cases (Department for Courts, 1997); Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004); and K Saville-Smith and R Fraser Alternative Dispute Resolution: General Civil Cases (Ministry of Justice, 2004).
At Norling Law, we are passionate about providing our clients with a problem-solving approach to solving legal issues. We use our problem-solving skills in serving our clients on a daily basis.
This article discusses skills required by mediation advocates from Dr Grant Morris and Annabel Shaw’s commentary (A to Z of New Zealand Law — Alternative Dispute Resolution — Mediation (online ed, Thomson Reuters)).
Parties often have mediation advocates in commercial mediations. Mediation advocates are the representatives who act on behalf of the parties in a mediation. While mediation advocates are usually lawyers, different advocacy skill sets are required.
The adversarial approach
It is common for mediation advocates to adopt the adversarial approach. This is because lawyers are used to litigation and being focused on rights rather than interests. This hinders effective mediation and is not beneficial to the clients.
Another reason why the adversarial approach is commonly used by mediation advocates is because statutory regimes govern a lot of mediation in New Zealand and mediation is often considered to resolve civil legal claims once they have been commenced. For example, a lot of commercial mediations happen as part of the litigation process. In other situations, clients may expect their lawyers to take an adversarial approach.
Some view that mediation advocates who are lawyers prefer the adversarial approach because of economic reasons. This is because mediation usually reduces future disputes and consequently legal fees.
However, it is important for lawyers to remember that rule 13.4 of the Conduct and Client Care Rules provides that a lawyer assisting a client with the resolution of a dispute must keep the client advised of alternatives to litigation that are reasonably available to enable the client to make informed decisions regarding the resolution of the dispute.
Mediation advocacy skills
It is important for mediation advocates to have knowledge of the process. Having knowledge of the mediation rules, ethics, contractual obligations and the law relating the subject matter is also important.
Preparing before the mediation process is essential. Mediation advocates should know the issues and facts well. They should adopt a mediation advocacy approach as they will be the ones that influence the clients’ approach to mediation.
Mediation advocates should also help clients identify their interests and needs and prepare an explanation of the client’s perspective and desired outcome. They should prepare the clients so they can respond to unexpected situations and emotions and assist clients identify possible results by undertaking a risk assessment. They should also encourage their clients to actively participate in the process.
Mediation advocates require other skills in addition to those that are required in an adversarial role. These include communication skills, relationship management skills, ability to build rapport, emotional competence, ability to be persuasive, advanced negotiation skills and problem-solving skills.
Ways to increase mediation advocacy
Because the mediation advocacy approach results in better outcomes for the clients, it should be encouraged to mediation advocates. Mediation education should be encouraged to the legal profession to increase awareness of the mediation advocacy approach.
Educating clients and the wider community about mediation can be another way to increase awareness. This can include teaching dispute resolution skills to the wider public.
Conclusion
The adversarial approach is used excessively even though it is not beneficial to the clients. The importance of mediation advocacy should be promoted, and awareness should be increased to improve the efficacy of mediations. This will allow the parties to reach quick and affordable resolutions while preserving relationships as well.
Clients should ensure that they engage experienced mediators and mediation advocates who encourage the mediation advocacy model. Mediator skills are discussed in our previous issue.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and mediation advocates, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
Our mediator, Wendy Alexander, understands the importance of the mediation advocacy approach and regularly assists with the facilitation of settlements through mediation.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
At Norling Law, we are passionate about providing our clients with a problem-solving approach to solving legal issues.
This article discusses skills required by mediators from Dr Grant Morris and Annabel Shaw’s commentary (A to Z of New Zealand Law — Alternative Dispute Resolution — Mediation (online ed, Thomson Reuters)).
Mediator skills
Mediators should have sound knowledge of the relevant law and specific subject matter. Mediators also require skills including communication skills, ability to deal with conflict, sound knowledge about the context and procedure, and negotiation and decision-making skills.
Some skills such as effectively displaying empathy are inherent.
Being able to deal and work with conflict is one of the most important skills. The ability to manage the process, facilitate parties’ communication and negotiations, and problem-solving are important skill sets.
These skills are used by the mediator throughout the mediation process.
Process management
Whether the mediation process is productive will depend on the mediator’s ability to build and maintain trust with the parties. This is because parties will need to share sensitive information so that the mediator can identify the issues and needs of the parties.
Mediators also need to build rapport, be empathetic and impartial throughout the mediation process. They also need to be able to adopt a process that is appropriate to the relevant dispute. This requires practical skills such as the ability to analyse and use information.
Another essential skill is the ability to manage the mediation process well. It is important not to own or control the process, but to manage it.
Communication facilitation
Mediators will need to manage the parties’ communications and interactions by conveying their understanding to the parties. This will happen more often in the joint session and negotiation phases. The mediators will encourage the parties to share information and clearly identify their interests. Mediators will also assist the parties understand where the other side is coming from.
Parties may show hostility because of stress or other reasons. For this reason, mediators need to be able to communicate clearly to the parties. Managing effective communication requires skills in dealing with emotion and unexpected behaviour. Active listening is another important communication skill.
Written communication skills such as writing and drafting skills are crucial as well. This is because mediators need to be able to effectively manage written communications. Mediators could also be involved in drafting agreements.
Mediators need to ask the right questions and reframe them accordingly. They may also coach the parties on how they can constructively communicate with each other. For example, mediators could encourage the parties to reframe their language. Mediators also need to be fair when they provide coaching to make sure they always appear impartial.
Mediators may sometimes choose to remain silent. This will encourage the parties to communicate with each other and discuss possible resolutions.
Problem-solving and facilitating negotiations
Another important skill is to facilitate the parties’ negotiations and help them reach an agreement. The mediator will help the parties identify possible options for resolutions. Mediators can guide negotiations by encouraging parties to have realistic expectations.
Mediators may also help the parties conclude the mediation process if an agreement cannot be reached. It is important to manage the conclusion of the mediation appropriately.
Conclusion
Some mediator skills are inherent, others can be learnt. Emotional competency skills distinguish great mediators from good mediators.
Having a skilful mediator manage the mediation process is crucial. Our mediator, Wendy Alexander, has extensive experience in facilitating settlements through mediation. Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and representatives, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
This article discusses the classic process of mediation and what is involved in a mediation session from Dr Grant Morris and Annabel Shaw’s commentary (A to Z of New Zealand Law — Alternative Dispute Resolution — Mediation (online ed, Thomson Reuters)).
Mediation process
While there is no set process of mediation, facilitative mediation is the usual model. The three stages involved with facilitative mediation is pre-mediation, mediation session and post-mediation.
Pre-mediation
Pre-mediation consists of initiation, intake and preparation.
The initiation of mediation can happen through a contract clause, court referral, or through the parties’ representatives.
During the intake phase, the parties will be informed about the process and will be able to decide if mediation is suitable for them. Parties and mediators will also be able to build rapport.
The parties will be able to ask questions about the process during the preparation stage. They will then provide relevant information to the mediator and exchange information with each other. They will also agree on the venue and duration of mediation.
Mediation session
The mediator and parties will try to understand and define the issue and resolve it in the mediation session.
A mediation session usually includes a mediator’s opening, parties’ openings, mediator’s summary, joint discussion, negotiation, separate meetings, final decision-making, agreement and closing. The duration of this process will depend on the nature of the dispute.
The mediator during the mediator’s opening will remind the parties of the process and will help them to build trust.
The parties’ openings let the parties understand the legal issues, risks and other side’s perspective. The mediator will assist the parties to resolve the issues.
The mediator will then summarise each parties’ perspectives. This step allows the parties to hear the other side’s story through an impartial mediator.
The parties can then clarify and discuss the issues in the joint discussion. The mediator will guide the discussion and the parties can directly talk about the issues. This process will allow them to understand the relevant interests. The mediator will generally ask questions to assist the discussion.
During the negotiation and problem-solving phase, the parties will be able to consider the options for resolution. The mediator will guide the parties to be realistic and work through any deadlocks.
Mediation caucusing is the use of separate meetings between the mediator and the parties individually. This may happen at any stage of the mediation process. It can be used to discuss the conflict and overcome barriers and challenges of mediation. Mediation caucusing is discussed in our previous issue ‘Overcoming barriers and challenges of mediation’ article.
The final decision-making and agreement stage allows the parties to finalise the outcome. If the parties fail to reach a resolution, caucus sessions may be held to check if an agreement can be reached. The parties may also consider whether to pursue further mediation, alternative dispute resolution or litigation.
In the closing phase, the mediator will acknowledge the effort the parties have made, and the parties will be able to make comments.
Post-mediation
After the conclusion phase, the parties may finalise or certify the agreements. Post-mediation may happen if a case was adjourned or if the parties were unable to reach a resolution.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and representatives, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through mediation.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
