​

WHAT IS MEDIATION?

Mediation is first and foremost a non-binding procedure. Meaning that, even though parties have agreed to submit a dispute that both parties have to mediation. Both parties are in control of the mediation process at all times and are not obligated to continue mediation at any time. 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.

​

In our model of mediation your mediator will facilitate mediation, the mediator facilitates communication between the parties and to help each side to understand the other's perspective, position and interests in relation to the dispute, with ultimately encouraging the parties to develop a mutually beneficial agreement.

​

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.

​

HOW DOES MEDIATION DIFFER FROM ARBITRATION?

The differences between mediation and arbitration all stem from the fact that, in a mediation, the parties retain responsibility for and control over the dispute and do not transfer decision-making power to the mediator. In concrete terms, this means two things principally:

• In an arbitration, the outcome is determined in accordance with an objective standard, the applicable law. In a mediation, any outcome is determined by the will of the parties. Thus, in deciding upon an outcome, the parties can take into account a broader range of standards, most notably their respective business interests. Thus, it is often said that mediation is an interest-based procedure, whereas arbitration is a rights-based procedure. Taking into account business interests also means that the parties can decide the outcome by reference to their future relationship, rather than the result being determined only by reference to their past conduct.

• In an arbitration, a party's task is to convince the arbitral tribunal of its case. It addresses its arguments to the tribunal and not to the other side. In a mediation, since the outcome must be accepted by both parties and is not decided by the mediator, a party's task is to convince, or to negotiate with, the other side. It addresses the other side and not the mediator, even though the mediator may be the conduit for communications from one side to the other.

​

Naturally, in view of these differences, mediation is a more informal procedure than arbitration.

​

THE FUNCTION OF RULES IN MEDIATION

Mediation is a relatively unstructured and informal procedure in which continued participation in the process, as well as the acceptance of any outcome, depends on each party's agreement. Rules thus have a more limited function in mediation than in binding arbitration. What is that function?

​

By agreeing to submit a dispute to 80 Acres Counselling, Mediation & Consulting, the parties adopt the following Mediation Rules as part of their agreement to mediate. Those Rules have the following main functions:

• They establish the non-binding nature of the procedure

• They set out the way in which the mediator's fees will be determined

• They guide the parties as to the way in which the mediation can be commenced and the process can be established

• They provide the parties with assurances about the confidentiality of the process and the disclosures made during the process

• They determine how the costs of the procedure will be borne by the parties

​

FOR WHICH DISPUTES IS MEDIATION APPROPRIATE AND WHAT ARE ITS ADVANTAGES?

Mediation is not a suitable procedure for settling disputes in all cases. Mediation is not appropriate for parties who display: deliberate, bad-faith counterfeiting or piracy is involved, mediation, which requires the cooperation of both sides, is unlikely to be appropriate. Similarly, where a party is certain that it has a clear-cut case, or where the objective of the parties or one of them is to obtain a neutral opinion on a question of genuine difference, to establish a precedent or to be vindicated publicly on an issue in dispute, mediation may not be the appropriate procedure.

​

On the other hand, mediation is an attractive alternative where any of the following are important priorities of either or both of the parties:

• minimizing the cost-exposure entailed in settling the dispute;

• the maintenance of control over the dispute-settlement process;

• a speedy settlement;

• the maintenance of confidentiality concerning the dispute;

• or the preservation or development of an underlying business relationship between the parties

to the dispute.

​

The last-mentioned priority, in particular, makes mediation especially suitable where the dispute occurs between parties to a continuing contractual relationship, such as a license, distribution agreement or joint research and development contract, since, as mentioned above, mediation provides an opportunity for finding a solution by reference also to business, person and family interests and not just to the strict legal rights and obligations of the parties.

​

AT WHICH STAGES OF A DISPUTE CAN MEDIATION BE USED?

Mediation can be used at any stage of a dispute. Thus, it can be chosen as the first step towards seeking a resolution of the dispute after any negotiations conducted by the parties alone have failed. Mediation can also be used at any time during litigation or arbitration where the parties wish to interrupt the litigation or arbitration to explore the possibility of settlement.

​

Another common use of mediation is dispute prevention than dispute resolution. Parties may seek the assistance of a mediator during negotiations for an agreement where the negotiations have reached an impasse.

 

HOW IT WORKS: THE PRINCIPAL STAGES IN A MEDIATION

The structure that a mediation follows is decided by the parties with the mediator, who together work out, and agree upon, the procedure that is to be followed.

​

As mentioned above, the somewhat unstructured nature of a mediation can be disconcerting to those who may be entertaining the idea of submitting a dispute to mediation, but who may not be sure what to expect. For such persons, some guidance is set out in the following paragraphs, which outline the main steps in the mediation. The procedure outlined should, however, be understood as being for guidance only, since the parties may always decide to modify the procedure and to proceed in a different way.

​

Getting to the Table: The Agreement to Mediate

The starting point of a mediation is the agreement of the parties to submit a dispute to mediation. Such an agreement may be contained either in a contract governing a relationship between the parties, in which the parties provide that any disputes occurring under the contract will be submitted to mediation; or it may be specially drawn up in relation to a particular dispute after the dispute has occurred.

​

Initial Contacts Between the Mediator and the Parties

Following initial contacts made by both parties to the mediator, the mediator will conduct a series of initial discussions with the parties, which typically will take place by telephone or zoom meetings. The purpose of these initial contacts will be to set a schedule for the subsequent process. The mediator will indicate what documentation, if any, he or she considers should be provided by the parties prior to their first meeting and set the timetable for the supply of any such documentation and the holding of the first meeting.

 

The First Meeting Between the Mediator and the Parties

At the first meeting, the mediator will establish with the parties the ground rules that are to be followed in the process.

 

In particular, the mediator will

• discuss with, and obtain the agreement of the parties on, the question whether all meetings

between the mediator and the parties will take place with both parties present, or whether the mediator may, at various times, hold separate meetings (caucuses) with each party alone; and

• ensure that the parties understand the rules on confidentiality agreements established

• At the first meeting, the mediator will also discuss with the parties what additional

documentation it would be desirable for each to provide and the need for any assistance by way of experts, if these matters have not already been dealt with in the initial contacts between the mediator and the parties.

​

Subsequent Meetings

Depending on the issues involved in the dispute and their complexity, as well as on the economic importance of the dispute and the distance that separates the parties' respective positions in relation to the dispute, the mediation may involve meetings held on only one day, across several days or over a longer period of time.

 

The stages involved in the meetings held after the first meeting between the mediator and the parties would, where the mediator is playing a facilitative role, normally involve the following steps:

• the gathering of information concerning the dispute and the identification of the issues

involved;

• the exploration of the respective interests of the parties underlying the positions that they

maintain in respect of the dispute;

• the development of options that might satisfy the respective interests of the parties;

• the evaluation of the options that exist for settling the dispute in the light of the parties'

respective interests and each party's alternatives to settlement in accordance with one of the options; and

• the conclusion of a settlement and the recording of the settlement in an agreement.

​

Naturally, not all mediations result in a settlement. However, a settlement should be achieved where each party considers that an option for settlement exists which better serves its interests than any alternative option for settlement by way of litigation, arbitration or other means.

 

Parties' Private Consultations

Throughout the process of the mediation, naturally each party will wish to undertake, at various stages, private consultations with its advisors and experts for the purposes of discussing various aspects of the mediation or of evaluating options. It goes without saying that such private consultations may occur during the mediation process.

​

THE MAIN STEPS IN A MEDIATION

• The Agreement to Mediate

• Initial Contacts Between the Mediator and the Parties

  • setting up the first meeting

  • agreeing any preliminary exchange of documents

• First and Subsequent Meetings

  • agreeing the ground rules of the process

  • gathering information and identifying issues

  • exploring the interests of the parties

  • developing options for settlement

  • evaluating options

• Concluding

​

SELECTING THE MEDIATOR

Perhaps the most important step in the whole process is the selection of the mediator. What should the parties consider?

The parties should consider at least the following matters in deciding whom to appoint as mediator:

• what role do they want the mediator to play; do they want the mediator to provide a neutral

evaluation of their dispute, or do they want the mediator to act as facilitator of their negotiations by assisting them in identifying the issues, exploring their respective underlying interests and developing and evaluating possible options for settlement?

• do they want a mediator with substantial training and experience in the subject matter of their

dispute, or do they want a mediator more particularly skilled in the process of mediation? This will depend in part on whether they wish the mediator to play an evaluative or a facilitative role.

• do they want a single mediator or more than one mediator? In particularly complex disputes

involving very specialized and highly technical subject matter, the parties may wish to consider having both a subject-matter and a process specialist as co-mediators. Similarly, where the parties have very different cultural and linguistic backgrounds, they may wish to envisage two co-mediators.

• what nationality should the mediator have (or what nationalities should the mediator not have)?

• are the candidates independent, that is, are they free of any past or present personal,

business, financial or other disqualifying connections with either of the parties to the dispute or with the particular subject matter of the dispute?

• what are the professional qualifications and experience, training and areas of specialization of

the candidates?

​

WHERE DOES A MEDIATION TAKE PLACE?

The parties decide where they would like the mediation to take place. It is not necessary for a mediation to take place in office; however, the location for mediation must take place at a mutually agreeable location that is deemed appropriate by the mediator. If costs are associated with any chosen location the parties are responsible for covering those costs.

​

WHAT DOES IT COST?

• Hourly 

• Package rates (includes mediations and agreement)

 

WHO PAYS THE COSTS?

The costs of the mediation are to be borne in equal shares by the parties. The parties are free to agree to change this allocation of costs.

​

Adapted from: Mediation: Frequently asked questions. (n.d.). WIPO - World Intellectual Property Organization. https://www.wipo.int/amc/en/mediation/guide/