Justice, fairness and mediation
Justice, fairness and mediation

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6 Advantages and disadvantages of mediation

As with other forms of ADR, there are advantages and disadvantages to mediation. Some of these are outlined in the table below.

Table 3 Advantages and disadvantages of mediation

Advantages Disadvantages
  • ‘Everyone is a winner’ – mediation offers remedies which are not available to the courts in a litigation process. Therefore, usually mediation results in parties getting something that they want; there is not an outright winner or loser. This should be encouraged.
  • Fewer cases in the court – mediation prevents a backlog of cases, and this has been cited as one of the main reasons for the system in Italy. This reduces costs for the parties in dispute as well as costs to the public purse.
  • Access to justice – mediation is more affordable; therefore even if a party lacks financial means it can still resolve its dispute in this forum. Mediation is much cheaper than litigation, and is also cheaper than some of the other ADR procedures. The cost of mediation will depend on how complex the dispute is, and how many people are involved in the process.
  • Quicker – mediation forces parties to communicate and negotiate rather than take part in an adversarial process. Mediation can result in parties realising that the issues in dispute are actually quite narrow. For example, voluntary mediation in Scotland currently has an 80% settlement success rate on the day and up to another 10% of cases settle before commencing litigation.
  • Future relationship maintained – parties are more likely to maintain a positive relationship after attending mediation.
  • ‘Everyone is a loser’ – in order for mediation to be successful parties have to be willing to compromise, and they may not wish to concede anything. Mandatory mediation may therefore pressure parties to concede issues and leave them with a feeling of dissatisfaction with the legal system. The ‘injured’ party may challenge why they are out of pocket if they are ‘right’.
  • Fewer cases in the courts – this could result in a lack of precedent, due to mediation being a confidential process where cases are not reported.
  • Access to justice – disputants have a right to litigate, and therefore mandatory mediation would simply prolong the process and add another layer of cost. This may have adverse implications for access to justice.
(Adapted from Drummond, 2013)

Activity 5 Mediation in practise

Timing: Allow 10 minutes

How does the process of mediation described in the video below match what you have experienced or seen in action?

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Video 2 Michael Doherty

What steps might you take in order to enhance your own skills as a mediator?

Discussion

As is no doubt evident from the clip, being a mediator requires not just skill and expertise, but also significant sensitivity to the challenging circumstances people might be encountering. You may have seen mediation in action in various contexts, or perhaps even been involved in mediation yourself. If so, you will no doubt understand how challenging – but ultimately rewarding – the process can be both for the mediator and for those involved.

To enhance your own skills as a mediator it would be vital to undertake professionally delivered training, perhaps leading to an accreditation with a recognised body. While skills in mediation are very useful to have, given the various challenges mediators face, people undertaking mediation should always be taken to work within the limits of their experience and expertise.

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