When to use Mediation

Mediation can function not only as a tool for dispute resolution but also as a means of dispute prevention. Mediation can be used to facilitate the process of contract negotiation by the identification of mutual interests and the promotion of effective communication between two parties.

Not all disputes lend themselves well to mediation. One set of criteria for suitability is provided in mediation.

 

FACTORS RELATING TO THE PARTIES: Factors relating to the parties provide the most important determinants when deciding whether or not a dispute lends itself to mediation, as of course, the parties are the essential key to mediation. Basically, if parties are not ready and willing to mediate, mediation cannot take place.

If mediation takes place against the party’s wishes, the process will not work because one of the principles of mediation is participation, and the parties will not constructively participate if they are forced. Another factor to consider when judging dispute suitability for mediation is whether the parties have legal representation.

If one party has and the other does not, then it is not fair to mediate. Unlike the court system, a legal representative will not be appointed to the non-represented party. Therefore both parties need to consent to either be represented by legal advisors or not. It is not essential that legal advisors are present in the mediation session.

However in most cases it is strongly advised that the parties seek legal advice before signing the legally binding agreement. A final factor to consider is the legal capacity of the parties. A minor cannot enter a mediation session for obvious reasons, the same goes for persons with mental illness or disability that would affect their decision-making ability.

Once these are considered and no difficulties found, the remaining points on the checklist need to be considered.