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Fortune Manning Explain Mediation, A Different Way Of Resolving Disputes

Tuesday 16 August 2016, 10:42AM

By Beckie Wright

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Fortune Manning have acted in a number of mediation cases.  Mediation is a process where the parties in dispute agree to appoint an independent person to help them to negotiate an agreement to settle their dispute. 

 

A mediator's role is not to make a decision about who is right and who is wrong, but to facilitate discussions and negotiations between the parties to help them to reach an agreement.  The fundamental difference between a court case and mediation is that a court makes the decision about how the dispute is to be settled and the parties have to obey that decision, whether they agree with it or not.  A mediator does not make a decision; the decision about how the dispute is to be settled is made by the parties, who then usually sign up a contract which sets out the terms for the agreed solution.

 

If the parties agree to use mediation to settle their dispute, they jointly engage a mediator to provide mediation services.  The terms of the mediator's appointment are usually contained in a mediation agreement between the parties and mediator.

 

The mediator will usually convene a meeting of the parties and their lawyers.  All of the discussions held at the mediation are confidential and without prejudice which means that the contents of the discussions cannot be used against any of the parties at a later date.  This means that the parties can feel free to make offers or concedes points without fear of it being used against them later in a court case if the mediation fails.

 

The mediator will usually give each party the opportunity to make an uninterrupted opening statement setting our their point of view about the dispute and what they want for the dispute to be settled.  After opening statements, the mediator will usually discuss with the parties what the main issues in the dispute are.  Once the parties have agreed on what the main issues are, the mediator guides the parties through a discussion about the issues and options for them to be resolved.

 

There are two main mediation organisations in New Zealand, the Arbitrators and Mediators Institute of New Zealand (AMINZ) and Leading Edge Alternative Dispute Resolution Inc (LEADER).  Both of those organisations train and qualify mediators and have lists of their qualified mediators available for people to choose from.  If you are interested in appointing a mediator, the best person to talk to first would be your lawyer.  If you do not have a lawyer helping you with the dispute, then it would be best to talk to AMINZ or LEADER whose contact details are available on their websites.

 

Not all disputes are suitable for mediation.  Mediation almost always requires compromise by both parties.  So if a party is not prepared to compromise at all, then mediation will probably not work.  However, many people involved in disputes, including business people, just want to solve their dispute as quickly and inexpensively as possible and would be prepared to compromise their position to solve the problem and move on.  In those cases, mediation is often a very effective way of satisfactorily resolving disputes.

 

For more information on Fortune Manning, Settlors and their other services, please go to http://www.fortunemanning.co.nz .