MEDIATION

Mediation is a confidential and privileged dispute resolution process which takes the form of a structured settlement negotiation carried out between the disputing parties by an independent third party called the mediator. It is very similar to conciliation, with the main distinguishing feature being that if the Parties do not reach an agreed settlement, the process terminates without any further action (e.g. issue of a recommendation) by the mediator. To this extent while conciliation is evaluative, mediation is facilitative. The role of the mediator is to assist, or facilitate, the parties to explore their strengths, weaknesses, interests and needs to identify areas of accommodation or compromise with a view to the parties reaching an agreed settlement. During the process the mediator can meet with the parties together or separately and any information provided to the mediator by a party can only be revealed to the other party with the agreement of the first party. 

If the matter in dispute is settled, it is set out and executed as an agreement between the parties. Similar to conciliation, the parties bear their own costs of the mediation and share the mediator’s costs equally.

While conciliation is common in construction disputes, mediation is not (though it does occur). Mediation, not conciliation, would be the initial dispute resolution of choice in family and or matrimonial disputes.