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.
There are various options available for resolving commercial disputes. Often, some of them could lead to hefty costs, uncertainty as to outcome, delays and significant stress.
Mediation is a dispute resolution process that could help to avoid these costs and achieve a prompt resolution. Mediation should always be considered by parties when seeking to resolve a dispute, and where suitable, encouraged by their legal advisors.
Mediation is a form of negotiation where an independent person, a mediator, helps parties to define issues, negotiate and resolve disputes using an established process in a confidential environment. Mediation provides the parties with the opportunity to negotiate flexible and creative solutions, which are often not available in litigation. A skilled mediator assists the parties to develop and explore settlement options and negotiate a mutually acceptable settlement which meets the interests and needs of all parties.
The primary objectives of mediation are to enable and empower the parties to negotiate and resolve the dispute promptly, cost effectively, and confidentially, rather than have a decision imposed upon them by a judge or an arbitrator.
Norling Law supports mediation as an efficient way of solving legal issues, and where suitable, encourages the use of mediation to its clients.
Norling Law also offers an independent and impartial mediation service to non-clients in a dispute.
What happens in a mediation?
There are usually six phases in a mediation process. At Norling Law, we endorse the following:
Phase 1 – Planning and pre-mediation conference
- At a pre-mediation conference, the issues are discussed to ensure mediation is the appropriate process for the nature of the dispute. The roles and responsibilities of the mediator and the parties involved are clarified. It is also explored if further exchange of documents or other steps need to be undertaken prior to mediation, in which case, such steps and deadlines for them can be discussed and agreed upon.
Phase 2 – Mediator’s introduction
- At the start of the mediation, the mediator introduces the participants, explains the mediation process, and explains (and seeks agreement to) ground rules. The mediator then presents the goal of the mediation process: to help the parties come to a negotiated agreement on the situation before them.
Phase 3 – Opening remarks – defining the problem
- Each party has the opportunity to express fully their perspective on the legal, commercial, and personal issues involved, without interruption. The mediator then explores and defines the issues and seeks agreement from the participants that these are the issues they would like to discuss.
Phase 4 – Understanding law and interests
- The parties, with the assistance of their lawyers, explore and understand the legal risks and opportunities. The mediator then assists the parties to explore the legal, commercial, and personal interests in resolving the dispute (i.e. they explore what really matters to the parties).
Phase 5 – Generating options, exploring interests and packages
- The parties have full control in generating options for settlement (with guidance from their legal representatives). The options are then discussed, evaluated and prioritised to develop suitable packages for resolution.
Phase 6 – Concluding and looking to the future
- The parties review, refine and improve upon the preferred agreement package. Then, the mediated agreement is drafted and executed (with guidance from their legal representatives).
Does mediation work?
In 2015, research examined the nature of commercial mediation in New Zealand by conducting a survey amongst local commercial mediators. Over half of the mediators surveyed, reported a 90 – 100% settlement rate, and none reported a settlement rate of less than 70%.
This research also revealed that 62% of the participants in mediation saw the price of mediation as the major drawcard, as it is significantly cheaper than litigation. Mediation’s speed and efficiency, compared with the often-lengthy litigation process, was the second most common response. Confidentiality provides an element of privacy that litigation does not, and it was identified as the third most common influence on parties when choosing to mediate. It is possible the commercial mediators who participated in this research, echoed the reasons they have been given first-hand from their parties, and that cost is the biggest reason that parties pursue mediation.
In summary, parties undertaking mediation are mainly driven by a desire to avoid the price, time and publicity that comes with undertaking court action.
There are limited disputes that are not suitable for mediation. The parties’ legal advisors would be able to identify such disputes and inform the parties from the outset, to avoid incurrence of unnecessary costs.
How can you find out more?
Our expert mediator, Wendy, assists parties to navigate through the issues and find creative and profitable solutions.
Our office is located on the North Shore in Auckland, New Zealand, or can have the consultation by phone.
 Grant Morris and Daniella Schroder “LEADR/Victoria University Commercial Mediation in New Zealand Project Report (June 2015)” (Research Paper, Victoria University of Wellington, 2015).
 Morris and Schroder, above n 1, at 5.
 Morris and Schroder, above n 1 at 16.