- it helps to ensure ‘equality of arms’ between the individual student or employee and the institution.
- it offers `time out’
- it allows people to talk things through in a `safe place’ and express strong feelings with someone experienced in helping the parties to pick up the pieces.
- it can lead to resolutions in everyone’s interests and beyond the scope of the remedies available through formal adversarial procedures ( where in any case, someone has to ‘lose’).
An institution or provider should
- Make sure that a clear explanation of mediation and its possibilities is given to the parties in a dispute . The fact that it is risk–free should be emphasised.
- The sooner mediation is tried the better but it can be tried more than once and at later stages in a dispute.
Does it work?
Mediation usually works, but if it fails nothing is lost and it can later turn out that it acted as a useful ‘reality-check’ and helped the parties understand one another’s positions better.
The role of the mediator
The mediator is an independent third party who:
- is impartial, and has no stake in the outcome of the process
- helps parties in dispute to clarify issues, explore solutions and negotiate their own agreement.
- does not advise those in dispute, but helps people to communicate with one another.
The mediator’s skills include:
- Treating the parties fairly
- Helping the parties focus on the issues and on achieving a resolution
- Being clear and open
- Having the ability to deal with impasses
- Respecting confidentiality
- Confirming the parties are satisfied with any agreement
Other things you may find useful
The National Mediator Database
provides a body of reference material as well as an extensive list of ‘rated’ mediators.
The Civil Court Mediation Service Manual lists ‘Referral Indicators’ which suggest that mediation may be worth a try. How many of these sound familiar in connection with disputes at your institution?
- A result other than that possible through a court ruling is desirable
- Speedy solution is desired
- ‘Legal proceedings fatigue’
- [Desire to preserve] long-term relationship Common future interest(s)
- More litigation or more conflicts than presented in the proceedings
- Importance of confidential treatment, with possibility of separate interviews
- More parties involved in the conflict than just the parties in the proceedings
- A longstanding solution is essential
The recent decision in The Queen on the application of Shelley Maxwell and the Office of the Independent Adjudicator EWHC 1889 (Admin) contains several helpful comments on the benefits of using mediation.