Are some disputes more appropriate for mediation that others?

There’s a myth amongst many legal professionals that mediation is best suited to paltry squabbles, particularly of the personal kind.

My personal experience in the mediation arena has taught me the opposite — the more complex the dispute, the more important it is that the parties sit down to thrash out the issues.

Even in cases where litigation is inevitable, a skilled mediator will more clearly define the issues and sticking points at stake and advise on any roadblocks in the path leading up to a hearing.

Where the dispute has been particularly bitter or one-sided and it seems that no agreement can be reached, mediation gives all parties involved a chance to have their say. Done in a sensitive and sensible manner with a view to upholding the interests of all parties, mediation is an incredibly cathartic experience and can create positive breakthroughs that a more formal legal approach cannot achieve. I am constantly reminded of the emotional impact of allowing an individual to finally state their case before an impartial but concerned audience.

It’s those two factors that make mediation such a successful arena in which to resolve a dispute — impartiality should be a given but it’s the concern that really makes it work. A good mediator has a vested interest in achieving a successful outcome for all parties; anything less and it hasn’t worked. While the outcome cannot be forced, mediators can very often skilfully guide the parties to come to their own conclusions and meet in what I call the mutually-acceptable middle.

Mediation also creates a level playing field — particularly in a dispute between an individual and a corporation. While a bank has thousands of files, a customer has just one and it’s a big day for them to come along. The forum gives them a chance to present the other side of a case that has often gone unheard until now. The right mediator will be sensitive to how daunted by the experience a party might be — providing a forum and framework that provides the safety for them to present their case in an objective manner.

Even less complex disputes with either fewer issues or fewer parties can also benefit from mediation, with a mediator able to use their skills to take the discussion from one of positional bargaining to an outcome-based solution that sits well with everybody.

Unless arbitration has been ordered or is necessary from a contractual standpoint, mediation sits on top of the list of instruments at the legal professional’s disposal when looking to get the best outcome for their client.

About the author

Philip Crawford is one of Sydneys most recognised Mediators & Negotiators in the legal industry.

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