Mediation continues to be used more and more both in and out of court as a tool in resolving disputes.
What is mediation?
Mediation is the process where two or more parties are helped by a mediator in coming to a voluntary agreement about an issue or dispute. In Trinidad and Tobago, the process is governed by the Mediation Act.
Matters suitable for mediation
The mediation process may be suitable for parties at any stage of a dispute who do not wish to be burdened with either lengthy or costly litigation. Mediation is less formal, cheaper and quicker than litigating a matter in court.
Mediation is especially suitable for persons who, for example, still depend on each other for services or maintain a business or family relationship. It removes or reduces the ill feelings sometimes created by a court ruling which may deem one party the winner and the other the loser. With mediation there is no losing side since the parties try to come to an agreement that benefits both of the parties.
The mediation process
The mediation process is voluntary and can only work if the parties to the dispute agree to meet to resolve their dispute. It can be ended at the request of either party. For it to work, the parties should go into the mediation with an open mind and try to come up with a realistic solution to their problem.
The process differs from the court system in that not only are the issues to be addressed decided by the parties, but, they play an active role in resolving the dispute rather than having lawyers argue their case and have a judge make a ruling. This allows both parties to talk with each other throughout the process and come up with a solution which they both agree to. In addition, as the agreements are made by the parties they do not have to be based on strict law as a decision of a court would be.
Agreements made during a mediation session are usually binding, and can be given effect to by the court in a later claim.
The role of the mediator
The mediator is there to encourage communication and negotiation between the parties to the dispute. However, it is the disputing parties who come up with the solutions to their problems. If they reach an agreement, it is the duty of the mediator to draft the agreement and present this to the parties for their final approval.
For a mediation session to be useful the parties to the mediation must be frank. They may have to talk about sensitive issues. The mediator is under a strict duty of confidentiality. This means that the mediator must not tell anyone who he or she does not have permission to tell about the case.
Mediators must remain impartial throughout to ensure that the mediation is conducted fairly. Where a mediator’s neutrality is called into question, even where he or she is acting fairly, the mediator should stop hearing the matter. This is so because the parties are the persons who the mediation process serves, and they must be made to feel confident about it.
Co-ordinator: Roshan Ramcharitar. This column is not legal advice. If you have a legal problem, you should consult a legal adviser.