What is Mediation?
Mediation is a voluntary process during which an independent and professionally trained mediator would assist the disputed parties to reach a mutually acceptable settlement in accordance with their needs.
During the mediation process, each disputed party would take turn to put forward his or her case and would have opportunity to listen to the story of the other party. The role of the mediator is not to make any judgment or decision for the parties, but to assist the parties to understand their own cases from another perspective and to find out possible solutions, so as to facilitate them to reach a settlement agreement. The mediator would not decide which party is in a right or wrong position nor has the mediator got any authority to impose a settlement on the parties. Afterall, the decision-making authority should rest on the disputed parties themselves. All mediators are professionally trained to assist parties to find out solution and reach settlement.
What are the advantages of mediation?
Under court’s litigation proceedings, disputed parties may suffer from anxiety and serious disturbance to their daily life. Mediation can avoid such shortcomings and unfavourable consequences.
Disputed parties can also avoid traditional court process and thus can eliminate the risk of losing court case.
Disputed parties can avoid confrontational situation and achieving a mutually acceptable mediation.
As the disputed parties could make their own decisions and reach settlement agreement by themselves, they are thus more willing to comply with the agreement terms.
The settlement terms are confidential unless the parties intend to the contrary.
Mediation results are usually of greater flexibility and more practical. Mediation terms can go beyond those legal remedies that the court would grant. Mediation agreements made by the parties are usually tailor-made and unique that the court cannot provide.
Mediation could help to maintain an on-going harmonious relationship with parties involved.
The chance of post-mediation appeal is much less than litigation.
Unlike the formal and adversarial atmosphere during court proceedings, mediation is conducted in a flexible and relaxing manner under which parties tend to be more open to make compromise.
How much will mediation cost?
The disputed parties need to pay for the mediation service that they received. Parties could seek independent legal advises about the likely costs of mediation, and make any necessary comparison with the cost of litigation. In general, mediation is much cheaper and faster.
Charges for mediation mainly include the mediator’s fees (calculated on hourly basis) as well as other administrative fees and disbursements such as conference room charges. It is usual for the parties to agree before the start of the mediation that they will be responsible to pay the mediation fees in equal shares. If a party decides to seek legal or other professional advices for the purpose of mediation, such party would be responsible for any charges incurred.
How long does mediation take?
The time that mediation takes depends on:
The complexity of the case and number of issues in disputes;
The degree of all the parties’ cooperation and willingness to participate in the mediation sessions.
What kinds of cases are most suitable for mediation?
Mediation is suitable for almost all kinds of disputes.
The disputed parties who have interest to settle may be invited to attend a preliminary session where the mediator could evaluate whether mediation is suitable for their case(s). Parties may also seek independent legal advice to assist them when making decision.
One important thing which worth noting is that disputes involving criminal elements or domestic violence will not be suitable for mediation.
Duty and responsibility of the mediator?
The duty and responsibility of the mediator for every case is not to make any decision on behalf of the disputed parties. Instead, the role of the mediator is to assist the involved parties to consider all possible solutions to the dispute, and to facilitate them to reach a mutually acceptable resolution. Unless by mutual agreement of the involved parties, nobody can force or make undue influence on the parties to sign any settlement agreement.
Throughout the mediation session, mediator will provide assistance:
Locate and discuss the issues in dispute;
Discover the parties’ needs and interests;
Enlarge the possible options for the settlement and evaluate the most practical solution;
Draft and prepare the settlement agreement, stipulate the mutually agreed items for each matter in dispute.
Who are the Accredited Mediators of this Centre? How to appoint a mediator for my case?
All mediators of this Centre are required to abide by the Professional Rules and Code of Conducts. Mediators of this Centre come from various professional backgrounds such as practising lawyers, medical professionals, senior management executives, engineers and other professionals who have been trained extensively with knowledge and skills in negotiation and dispute resolution.
How does the mediation take place?
The mediator would conduct a preliminary individual meeting with each party in an independent and comfortable location, usually at private office. Coming next, the mediator would begin the mediation with a “joint session” so as to explain the whole mediation process and any necessary ground rules. In the joint session, the disputed parties would make presentation for their own views in turn and define the issues in dispute.
Private session: if consensus is unable to be reached at the above joint session(s), the mediator will usually suggest the parties to conduct private session and the mediator would assist them to evaluate the practicality of their settlement terms. All matters being mentioned or discussed with the mediator at private meetings are under strict confidence in the sense that such information will not be disclosed or communicated by the mediator to the other party without party’s consent.
The mediator and either party may terminate the mediation sessions at anytime. If agreement has been reached, each party will need to sign the settlement agreement which will then be legally binding and enforceable on the parties.
What do I need to prepare before mediation?
Familiarize with the facts and get prepared of the case background and issues in dispute;
Consider and evaluate various practical settlement options;
Seek legal or any other professional advice if considers necessary;
Is mediation a compulsory process?
Absolutely not. Mediation process is on voluntary basis. Having said that, if litigation is under progress or will soon be commencing, Court (when exercising its power to award costs) may consider all relevant circumstances, including whether any disputed party has refused to participate into the mediation without reasonable excuses. Party may face an aggravated Costs Order if it is of the Court’s view that the party has refused the option of mediation without any reasonable excuse.
Mediation not successful?
In case that the disputed parties could not reach settlement agreement, they may consider resolving their dispute through litigation.
One thing which needs to draw parties’ attention is that all the discussions during the mediation session would be under ‘without prejudice’ basis. As such, nothing discussed can be used as evidence in any future legal proceedings.
Confidentiality of Mediation
Our Centre requires all the mediators to observe the Professional Rules and Code of Conducts, under which the rule of confidentiality applies to all matters being discussed in the mediation session. When the disputed parties agree to participate into mediation, a “Mediation Agreement” is required to be signed by all parties, stipulating that all discussions throughout mediation are to be confidential and conducted on a “without prejudice” basis.