A mediator is a neutral third party who facilitates the resolution of disputes. They are skilled at enabling parties to come up with their own solutions to a dispute and in helping parties see the other side’s perspective. Mediators are also knowledgeable and able to assess the strengths and challenges of each side’s case. They understand the costs, risks and uncertainties of continuing to a trial and can help parties find a solution that is fair to both sides.
Mediation is a form of Alternative Dispute Resolution (ADR). It is voluntary, confidential and empowers the parties to make their own decisions. A mediator can be a lawyer, a retired judge or an experienced person from outside the legal community. Mediation takes place in a room that is private and secure and can last a few hours to a day or more.
The mediation process is generally less traumatic than going to trial and more cost effective for the parties. In addition, there are many other benefits of mediation including that everything said at the mediation is confidential and cannot be used in court.
OMCR mediations are usually conducted by an independent mediator selected from a pool of well-trained and experienced mediators approved by the Police Complaints Board. The independent mediators have a broad range of backgrounds, experience and skills, from legal to commercial and are familiar with the issues that arise in complex litigation.
In general, a mediator will do a considerable amount of preparation for the mediation before it actually begins on the day. This may include meetings with the parties and/or their lawyers. On the day of the mediation, all parties will begin by meeting in the same room to introduce themselves and discuss the ground rules for the session. The mediator will then spend time with each party in private sessions, known as caucuses.
One thing that a mediator must be aware of is potential conflict of interest issues. If a mediator has a pre existing relationship with the parties, business or personal or some financial interest in the outcome or settlement of the matter they must disclose this to all parties. If they are not able to assure all parties that they can undertake the mediation in an impartial manner then they should withdraw from the appointment.
During the mediation it is important to keep in mind that a mediator is not a decision-maker and is not able to make any orders or award of damages. They can, however, assist the parties in reaching an agreement on the terms of a settlement. Those terms can be recorded in a written document which will then be legally binding on the parties. Mediations can often be conducted even before a lawsuit is filed and can significantly shorten the timeframe to resolution of the dispute. The process of a mediation can be more productive than waiting for a trial date to be set, which can take a year or longer.