IMPORTANT ASPECTS
1. Agreement to Mediate – the Ground Rules
Before mediation commences, an agreement to mediate is signed by the parties and the mediator. This deals with 'the ground rules'. These generally include:
(A) Confidentiality:
The process will occur and be conducted in a strictly confidential manner. Nothing discussed or written down will be disclosed outside the mediation unless there is a legal obligation to do so such as information that may turn up relating to money laundering, child abuse etc.. Also there is an exception in cases where it transpires in mediation that somebody involved in or connected in some way with the mediation process may be in danger of harm and the mediator has an ethical responsibility to break confidentiality. Subject to these very limited ecxeptions, total confidentiality is guaranteed. This includes the fact that everything told to the mediator within the mediation is confidential between the party giving that information and the mediator unless the mediator is authorised to give any of it to the other side.
(B) "Without Prejudice":
The same legal privilege governs the process as governs any normal settlement negotiations. Whatever is stated or written during the process cannot subsequently be used as evidence in a court case. People's legal rights and remedies are not affected by engaging in the process. Nothing said or written can affect in any way the legal rights or remedies of either party. The mediator will not be called as a witness to testify in relation to what the parties stated at the mediation relating to the issues involved save for such matters as the parties had previously agreed could be disclosed subsequently. These could include for example, in the case of family mediations, a written financial summary if one was written down and signed.
(C) Voluntary participation
The prior consent of both parties to a dispute to engage in mediation is absolutely necessary.
Parties must participate in good faith and with the intention to make a genuine effort to resolve their dispute. However, it is open to either party to withdraw from or suspend the process at any time or for any reason. The Mediator also may suspend or terminate the mediation if the mediator feels it necessary without giving a reason.
(D) Conciliation
The parties at any stage may request the mediator to take on the role of conciliator. There is very little difference between a mediator and a conciliator and it is very difficult to define the difference. A conciliator will be authorised to go beyond merely facilitating the parties in their efforrts towards a resolution. A conciliator will 'nudge' the parties a little more by doing such things as offering suggestions and proposals.
2. Final Agreement
While the mediation process is private and confidential and without prejudice, if total or partial resolution is reached, committed to writing and signed by the parties as legally binding, that agreement becomes legally binding. Unless this happens, nothing is binding.
