Mediation can be more flexible and less expensive

PHOTO: GETTY IMAGES
PHOTO: GETTY IMAGES
When you meet people for the first time, a common question they ask is, what do you do for a living?

People who reveal themselves to be doctors risk being asked to give on-the-spot medical advice. Builders can get asked to do jobs "under the table". Lawyers will often be told they charge too much.

Mediators like me often hear negative comments like: "I was taken to mediation" or "the mediator favoured the other side".

This is disappointing because two fundamentals of mediation are that everyone agrees to take part in the process and the mediator is neutral, helping people to resolve disputes without having any decision-making powers.

Mediation, and other ways of resolving disputes out of court, have several advantages over using the traditional legal process.

For example, it is often cheaper, faster and more flexible. It is private and confidential. It can also provide the people involved with more say and control in reaching a solution.

Most of us will have heard of mediation being used in family- and employment-related disputes. However, it can be used to resolve any type of conflict, including ones:

  • Between individuals (eg neighbours in dispute over a shared driveway).
  • Involving business people (e.g. between partners or shareholders).
  • Within organisations (e.g. members of a sports club).

In all these situations, you generally have a range of options for getting a dispute mediated. You could:

  • Get help from a community organisation (e.g. Dunedin Community Mediation or Citizens Advice Bureau).
  • Pay to use a third party to help them (e.g. privately contract with a mediator).
  • Use a process provided by government (e.g. the ACC mediation service).
  • Use a process provided by a private sector body (e.g. the Real Estate Authority).

To go to mediation is a constructive step in a dispute, not a sign of weakness. It helps to show the strength of your views and to encourage frank and open dialogue, before you become entrenched in polarised positions.

You can create your own solutions, not ones that are decided by a judge and are restricted by legal rights.

Mediation allows you to explore options and understand each other’s interests and thinking in a more collaborative setting that is not only focused on legal rights.

Often disputes flair up where there is no obvious law or rule broken; what is broken is a human relationship.

Mediation can also help you to look beneath the presenting problem which is often only a symptom of a relationship breakdown, not the real issue.

For example, a disagreement over whether a staff member can work from home is not just about location. The manager may have control issues and want to micromanage all work done by their team.

Perhaps that is how they were treated when they first started working? Or, perhaps it is their own business which they started from scratch so they are extra protective of it?

The staff member may be anxious about that level of micro-management and perceive it to be bullying. The staff member may perform better in the evenings than in the mornings so would rather have sleep-ins at home.

There could be many other underlying issues which can be uncovered during mediation. Once you understand what is driving another person’s viewpoint, you can find it easier to find solutions to a dispute.

Sometimes mediations will be run by people from within the same business or organisation.

This approach can be suitable (for instance, if the dispute is about an expert technical matter) and it is likely to be cheaper than involving an outside mediator.

However, in some situations this approach is inappropriate, such as where there are significant power imbalances between a boss and staff member, or a committee and one club member.

Mediation is also a useful tool as part of a wider dispute resolution process. An investigation or restructure may have taken place which can leave people feeling raw and unsettled.

Mediation, with a restorative justice perspective can help work through residual issues.

In New Zealand, there are a few mediators who work in dispute resolution provider companies or in law firms, but most are sole practitioners.

To find a qualified mediator, I recommend you contact one of our two professional membership associations, the Arbitrators and Mediators Institute of New Zealand (AMINZ) or the Resolution Institute (formerly LEADR).

Before you decide to use mediation, you may like to talk to your legal advisers. I encourage you to think about it as a useful way to not only resolve disputes, but to also repair relationships.

This is particularly helpful in today’s tight economic conditions where it is hard and expensive to replace staff and to find alternative suppliers.

--  Kate Hesson is director of Hesson Consultancy.

 

 

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