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What Is Mediation?

Mediation is a non-binding process designed to facilitate dispute resolution. While both parties voluntarily agree to engage in mediation, they retain full control over the process and may discontinue it at any time. The continuation of mediation is entirely dependent on their mutual willingness to proceed.

Because mediation is non-binding, no decisions can be imposed on the parties. Any resolution must be reached through voluntary agreement, ensuring a collaborative and mutually acceptable outcome.

Unlike a judge or arbitrator, a mediator does not render decisions. Instead, their role is to facilitate constructive dialogue, helping parties understand each other’s perspectives, positions, and interests. This approach encourages productive discussions and fosters solutions that benefit all involved.

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Our Mediation Approach

Our mediation model focuses on open communication and negotiation. The mediator guides the discussion, helping both parties explore potential solutions while ensuring that each perspective is acknowledged and understood. Ultimately, mediation encourages a cooperative resolution tailored to the needs of both parties.

Additionally, confidentiality is a key aspect of mediation. This ensures that any proposals, admissions, or settlement offers remain private and cannot be used in future litigation or arbitration.

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How Does Mediation Differ from Arbitration?

The fundamental difference between mediation and arbitration lies in decision-making authority:

• Mediation is controlled by the parties, who determine the outcome themselves.

• Arbitration involves an external authority, such as an arbitrator, who makes a binding decision based on legal standards.

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Key Differences:

• Decision Basis:

  • Mediation is interest-based, meaning resolutions are shaped by each party’s needs and future goals.

  • Arbitration is rights-based, meaning outcomes are determined based on applicable laws and past conduct.

• Communication & Strategy:

  • In arbitration, each party presents arguments to persuade the arbitrator.

  • In mediation, negotiation occurs directly between the parties, with the mediator serving as a guide for dialogue.

Given these differences, mediation is generally a more informal and collaborative process than arbitration, offering flexibility for tailored resolutions.

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The Role of Rules in Mediation

Mediation is an informal and flexible process in which participation and acceptance of any resolution remain voluntary for all parties involved. Unlike binding arbitration, mediation is guided by principles rather than strict regulations, meaning that its rules serve a more limited but essential function.

By choosing 80 Acres Counselling, Mediation & Consulting, parties agree to adhere to established Mediation Rules, which serve the following key purposes:

• Confirming the non-binding nature of mediation, ensuring parties remain in control throughout the process.

• Outlining mediator fees and the process for determining costs.

• Providing guidelines on initiating mediation and structuring the process.

• Ensuring confidentiality, protecting all disclosures made during mediation.

• Clarifying cost-sharing responsibilities among the parties involved.

These foundational rules ensure fairness while preserving the collaborative nature of mediation.

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What Types of Disputes Are Best Suited for Mediation?

While mediation is a powerful tool for dispute resolution, it is not always appropriate in every case. Mediation requires mutual cooperation, meaning it may not be suitable in scenarios involving:

• Deliberate bad-faith actions, such as counterfeiting or piracy.

• Situations where one party seeks a clear legal ruling, rather than a negotiated agreement.

• Cases requiring public vindication or precedent-setting, such as those where a party seeks an official ruling.

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However, mediation is highly effective when either or both parties prioritize:

• Reducing legal costs associated with dispute resolution.

• Maintaining control over the negotiation and outcome.

• Expediting settlement, avoiding lengthy litigation.

• Protecting confidentiality, ensuring sensitive matters remain private.

• Preserving business or personal relationships, particularly in ongoing contracts or partnerships.

Mediation is particularly valuable when resolving disputes within licensing agreements, distribution contracts, joint research collaborations, and other relationships where future interactions are necessary.

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When Can Mediation Be Used?

Mediation can be implemented at any stage of a dispute, including:

• As an early resolution tool, when direct negotiations have failed.

• During ongoing litigation or arbitration, if parties wish to explore settlement alternatives.

• As a preventative measure, helping to resolve contract negotiation impasses before they escalate.

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How Mediation Works: The Process

The structure of a mediation session is determined collaboratively by the parties and the mediator. This ensures flexibility while creating a framework for productive discussions.

While mediation is designed to be less rigid than arbitration or court proceedings, the following steps generally apply:

1. Agreement to Mediate – Parties consent to mediation and establish basic terms.

2. Selection of a Mediator – An impartial mediator is chosen to facilitate discussions.

3. Pre-Mediation Preparation – Parties outline concerns, gather documentation, and define goals.

4. Initial Meeting – The mediator sets expectations and encourages open communication.

5. Negotiation & Discussion – Each side presents its perspectives while working toward a resolution.

6. Settlement Agreement – If an agreement is reached, terms are formalized for implementation.

While these stages provide a general guideline, mediation remains adaptable, allowing parties to customize the process to best suit their needs.

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Getting Started: The Agreement to Mediate

The mediation process begins when both parties agree to submit their dispute for mediation. This agreement may be outlined in a contract governing their relationship, specifying that any disputes will be resolved through mediation, or it may be established after a dispute has already arisen.

Initial Contact with the Mediator

Once both parties initiate mediation, the mediator will conduct a series of preliminary discussions, typically via phone or video meetings. These initial conversations help establish:

• A schedule for the mediation process.

• Required documentation and deadlines for submission.

• A framework for the first formal meeting.

The First Mediation Meeting

At the first session, the mediator will outline ground rules to ensure an effective and respectful process.

Key topics covered include:

• Whether all meetings will involve both parties together, or if separate private sessions (caucuses) will be conducted.

• Confidentiality agreements, ensuring the privacy of discussions and shared materials.

• Any additional documentation or expert consultation needed to support the mediation process.

Subsequent Mediation Sessions

The number and duration of mediation sessions will depend on the complexity of the dispute, the economic stakes involved, and the distance between each party’s positions. Mediations may occur over a single day, multiple days, or an extended period, depending on the circumstances.

A typical facilitative mediation includes the following steps:

1. Information Gathering – Identifying key issues within the dispute.

2. Exploring Interests – Understanding the motivations and needs underlying each party’s stance.

3. Developing Settlement Options – Brainstorming potential solutions that address both parties’ interests.

4. Evaluating Settlement Options – Assessing each proposed resolution against alternatives like litigation or arbitration.

5. Reaching & Formalizing an Agreement – Recording the final settlement terms.

While not every mediation results in a settlement, success occurs when both parties identify an agreement that better serves their interests than legal or arbitration alternatives.

Private Consultations During Mediation

Throughout the process, each party may choose to engage in private consultations with advisors, legal representatives, or experts. These discussions help refine mediation strategies and evaluate settlement proposals effectively.

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Key Mediation Steps Overview

• Agreement to Mediate – Establishing mutual commitment to the mediation process.

• Initial Contact – Setting up the first meeting and agreeing on preliminary document exchanges.

• First & Subsequent Meetings – Defining the ground rules, gathering information, and developing solutions.

• Exploring & Evaluating Options – Identifying interests and settlement possibilities.

• Concluding the Process – Finalizing the agreement, if a resolution is reached.

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Selecting the Right Mediator

Choosing the right mediator is one of the most critical steps in the mediation process. When selecting a mediator, parties should consider the following factors:

• Mediator’s Role:

  • Should the mediator provide a neutral evaluation of the dispute?

  • Or should they facilitate negotiations, helping to identify issues, explore interests, and develop settlement options?

• Expertise & Experience:

  • Does the mediator need substantial subject-matter expertise related to the dispute?

  • Or should they be highly skilled in mediation techniques, focusing on process facilitation?

  • This decision depends on whether an evaluative or facilitative approach is preferred.

• Single or Multiple Mediators:

  • For complex and technical disputes, parties may consider using co-mediators—one specializing in the subject matter and another in mediation processes.

  • In cases where parties come from diverse cultural or linguistic backgrounds, having two co-mediators may enhance communication and understanding.

• Nationality & Neutrality:

  • Should the mediator have a particular national background?

  • Are there conflicts of interest?

  • Candidates must be independent, free from any past or present personal, financial, or business connections that could influence the process.

• Qualifications & Training:

  • What are the mediator’s professional credentials, areas of specialization, and experience?

  • Is their approach aligned with the needs of the dispute?

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Where Does Mediation Take Place?

Mediation can occur in any mutually agreed-upon location, whether in an office or an alternative setting. The venue must be deemed appropriate by the mediator. If additional costs are associated with the location, the parties are responsible for covering these expenses.

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Cost of Mediation

Mediation costs are structured as:

• Hourly Rates

• Package Rates (including mediation sessions & agreement documentation)

 

Who Covers Mediation Costs?

• Standard Practice: Costs are typically shared equally between the parties.

• Alternative Arrangements: Parties may agree on a different cost allocation, depending on the circumstances.

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