Mediation is a form of assisted negotiation whereby parties agree to appoint a trained, impartial third party (the mediator) to assist them to resolve their dispute. The mediator is agreed upon by all parties and is a neutral third person who helps the parties to reach an amicable settlement which is responsive to everyone’s needs. The mediator does not impose a decision on the parties. Rather, the key decisions are made by the parties themselves.

To mediate means to act as a peacemaker between those in disputes. It is essentially an informal process in which the parties are assisted by one or more neutral third parties in their efforts towards settlement. Mediators do not judge or arbitrate the dispute. They advise and consult impartially with the parties to assist in bringing about a mutually agreeable solution to the problem.

There are two common threads. First, the form of the third party intervention. The primary role of the third party is to facilitate other people’s decision making. The process builds on negotiation, and the mediator fundamentally sustains and reviews the situation with the parties. Second, the third party should be independent of the parties in dispute. The essence of mediation that the mediator is impartial. The trust which develops during the process allows the mediator to perform “a bridging role” between the parties.

It is a voluntary process. The mediator is a facilitator and during the process will not judge or advise. The mediator will employ solution focussed techniques in order to assist parties to come to a settlement which all the parties are satisfied with, thus ensuring an overall desirable outcome. Each party will have a chance to put forward their point of view as well as listen to what the other party has to say.

Negotiations that take place in the mediation will be confidential and without prejudice which means parties cannot rely on what is said in the mediation outside of the mediation.

In summary, the main elements of mediation are that:

  • It is voluntary in the sense that the parties participate of their own free will.
  • A neutral third party assists the parties towards a settlement.
  • The process is non-binding unless an agreement is reached.
  • The process is private, confidential and conducted without prejudice to any legal proceedings.

Mediation is first and foremost a non-binding procedure. This means that, even though parties have agreed to submit a dispute to mediation, they are not obliged to continue with the mediation process after the first meeting. In this sense, the parties remain always in control of a mediation. The continuation of the process depends on their continuing acceptance of it.

The non-binding nature of mediation means also that a decision cannot be imposed on the parties. In order for any settlement to be concluded, the parties must voluntarily agree to accept it. Unlike a judge or an arbitrator, therefore, the mediator is not a decision-maker. The role of the mediator is rather to assist the parties in reaching their own decision on a settlement of the dispute.

Mediation is a confidential procedure. Confidentiality serves to encourage frankness and openness in the process by assuring the parties that any admissions, proposals or offers for settlement will not have any consequences beyond the mediation process. They cannot, as a general rule, be used in subsequent litigation or arbitration.