Mediation is a process whereby an independent third party assists two or more consenting parties to resolve a conflict by helping them to come to a mutually acceptable solution or compromise. The mediation is considered a confidential process and the mediator may not subsequently be called into court or otherwise obliged to disclose the information received during the mediation. The mediator assists the parties to identify issues, vent, if necessary, discuss causes of the conflict and explore options for an outcome satisfactory to all, some of which may not be available in the litigation process.
The mediator does not sit in judgment of the parties, and although a party who is or appears to be biased ought not to participate in the mediation, it is important for the parties to understand that they are the ones who will decide as to the final outcome; however, it is desirable to have an impartial mediator. It is thought to be empowering for the parties to be the ones to make a decision on their own terms as opposed to having a decision imposed on them at the end of a long and no doubt expensive litigation.
Often matters that are litigated in the courts turn on a relatively narrow issue, but because of hurt feelings and for a variety of other causes each party is determined to fight to the bitter end, when the mediation process is shorter and thereby much cheaper, and allows the parties to “save face” in making concessions on their own terms.
Some of the tools used during the mediation are the mediator's opening statement, each party being allowed a similar amount of time to present their case as they see it and the mediator's summary of each party's positions. It may be necessary to hold a caucus with each party as a means of reducing tension and putting a little distance between the parties, or just if there seems to be no movement in the discussion. The mediator is entitled to ask questions in order to clarify issues and may use other tools in order to narrow the issues.
Hopefully a mediation ends with an agreement, but at times parties are unable to resolve their issues at the time, but the mediation may assist in reducing hostility; and mediations may sometimes give rise to settlements after the mediation but as a direct result of the mediation.
To find out more about mediation in The Bahamas, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.
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