Commercial Mediation – Nothing more than a fishing expedition?

MediationMediation as a process is very different from other alternative dispute resolution mechanisms and the litigious process. In terms of the court annexed mediation rules it is defined as:

 

“[T]he process by which a mediator assists the parties in actual or potential litigation to resolve the dispute between them by facilitating discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute.”

 

“Mediation – designate processes for bringing about agreement or reconciliation between opponents in a dispute. Mediation implies deliberation that results in solutions that may or may not be accepted by the contending parties.”

 

As such, parties to the dispute and not the mediator, determine the outcome of h matter. This in contrast to litigation or arbitration – where magistrates, judges or arbitrators determine the outcome. So, the question naturally flows, particularly in commercial disputes – if parties determine the outcome – what stops either party from using the process to gain a strategic advantage over the other in future litigation or claims?

 

This is a particularly important challenge to overcome as the fear of this may undermine the success of the mediation process as a whole.

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