Alternative Dispute Resolution (ADR) offers a way for commercial disputes to be resolved without the need for costly litigation. A common type of ADR is mediation.
Mediation involves an independent trained mediator who facilitates communication between the two parties having the dispute, with the aim of achieving a settlement or resolution.
Resolution, the association of family lawyers which promotes a non-confrontational approach to family law issues, provides a special mediation service for separating couples. In Scotland, Relationships Scotland and CALM Scotland also provide family mediation services.
Once the parties in dispute have agreed to a mediation process, an independent mediator will be appointed, possibly by a mediation organisation such as the Centre for Effective Dispute Resolution (CEDR) or the ADR Group. The mediator will discuss the issues and try to help the parties reach an agreement, but will generally not offer their own opinions or assessment. In commercial disputes, lawyers may advise their clients during the mediation process and Resolution offers trained lawyer mediators who can provide legal information on aspects of family law.
A successful mediation may result in a settlement or a conclusion of the dispute. Any agreement can then be put into writing to become legally binding. It is important to note that the mediation process is entirely voluntary; a successful outcome depends on a mutual agreement and either party is free to walk away at any stage.
A mediator does not need to undergo any specific training but some do have legal experience which can be helpful in certain disputes. Resolution mediators are specially trained to resolve disputes between divorcing couples such as children arrangements. The job of a mediator is primarily to facilitate communication between the parties having a dispute and steer them towards an agreement.
If an agreement is reached during the course of mediation, in order for it to be legally binding it must be set out in writing as a contract.
Arbitration is a more formal type of ADR, with a tribunal process and a decision being made by the arbitrator. Mediation and conciliation are less formal procedures and focus on the facilitation of communication with a view to resolving a dispute; conciliation involves evaluative methods and recommendations whereas mediators tend not to make any proposals for settlement.
Mediation is generally used in situations where the parties want to (or will have to) keep working together or maintain an ongoing relationship despite the disagreement. Mediation is particularly useful for resolving family law disputes where separating couples are on speaking terms. It can also help out with business disputes where the two sides are willing to use ADR - particularly when cross-border issues are at stake (ie which would otherwise require determination of jurisdiction etc).
For family law disputes, there is a requirement to attend a Mediation Information Assessment Meeting (MIAM) before separating couples can take a case to court. This meeting, attended by a qualified mediator, allows the parties to find out about mediation options. There are certain exceptions to attending a MIAM (eg in cases of domestic violence).