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Arbitration, Mediation and Dispute Resolution.
Arbitration,
Mediation and Alternative
Dispute Resolution are fast becoming a more economical way to resolve
contractual disputes. Alternative Dispute Resolution includes both
arbitration and mediation as well as expert witness and expert referee
services.
Arbitration
is an economical alternative to formal court proceedings. Arbitration
will normally result in an award to one of the parties. The arbitration
proceedings are facilitated by an accredited Arbitrator and follow
a formal procedure.
Mediation
is a dispute management process aimed at assisting parties to find
a mutually satisfying resolution to their problems, without the
need to resort to a third party to impose a decision upon them
How does Mediation work?
The mediator is an independent and entirely impartial facilitator
of a discussion process aimed at assisting the parties to find their
own solutions to their problems. Many mediators utilise a combination
of group and private discussions aimed at guiding the parties towards
finding a resolution.
Mediation is a voluntary
and controlled process focused on finding ownership of mutually
satisfying solutions, in a safe environment where the mediator
is impartial and the material
discussed remains confidential.
Mutually satisfying resolutions.
The mediator will not impose a decision on the parties - instead
the process is one of exploration of issues and legal positions,
aimed at finding a solution that all of the parties find mutually
acceptable. The result is that the participants genuinely have
ownership of the outcome, and the satisfaction of knowing that
they have worked together to resolve their disputes and repair
damaged relationships.
Voluntary.
Unlike legal proceedings, mediation is a process that all parties
actively choose to participate in. The parties are free to leave
at any time and without reason. However, it is generally accepted
that the parties participating in the mediation are there because
they genuinely wish to see the dispute resolved and are conscious
that legal rights can still be pursued should the mediation fail.
Impartiality & Safety.
It is important that the parties are fully aware that the mediator
is not present to provide legal advice. Instead the mediator is
entirely impartial, and simply provides a non-threatening environment
for discussion.
Confidentiality.
Material discussed at mediation remains confidential to the parties
and to the mediator - except as required by law. Likewise, in
the event that either of the individual parties has confidential
discussions with the mediator, the content of these discussions
remain confidential to the party concerned and the mediator.
Why
does Mediation work?
There are a number of reasons Mediation works as well as it does:
The outcome is something the parties actually have ownership of.
There have been no orders made or decisions handed down. Instead
the mediator has helped the parties find their own mutually acceptable
solution. It is commonly accepted that the parties find the process
extremely satisfying.
An understanding of the facts surrounding the dispute is essential.
However, it is not vital that there be agreement on any issues of
who may have been right or wrong. Instead once the circumstances
are discussed, the mediator guides the parties through explaining
what issues are of real importance to them and addressing what present
and future needs exist for the matter to be resolved.
Because the process is confidential, there is no risk of bad press
associated with any settlements being made.
There is often uncertainty or litigation risk involved in court
proceedings or arbitration - mediation removes this risk and gives
the power to make decisions back to the parties, with their legal
advisers present.
The process is fast. Most commercial mediations are concluded within
a day. While the process can seem drawn out at the time, it is considerably
faster and significantly less expensive than the legal and expert
witness costs associated with litigation.
It gets results! Statistics vary but most confirm that the rate
of agreements being reached is high, and it is not unusual for mediators
to have success rates ranging from 75% to 95%. However, it is important
that the parties understand that there is no shame in not settling,
especially if there are more attractive alternatives available.
How to Prepare for Mediation
It is entirely the responsibility of the parties and their legal
advisers to ensure that they are adequately prepared for the mediation.
However, there are a number of fundamental issues that need to be
considered:
Positions.
It assists the parties to have an understanding of their legal
rights and remedies available, and their chances of success if
they were to actually exercise those rights.
Desired Outcomes. It is also important that the parties
know what they actually wish to achieve and have considered how
to approach discussing issues with the other parties.
Evidence. Prepare your evidence. Attend the mediation with
an appropriately bound and numbered bundle of documents. Be prepared
to provide a copy for each of the parties attending the mediation.
Confirm the date, time and venue of the mediation. Given
that there is no fixed time frame for how long the mediation may
take, it is sensible to ensure that the entire day is kept free
for the purposes of the mediation.
Arbitration
and mediation present a simple and cost effective way for technology
companies to quickly resolve business disputes without the need
for costly litigation and court actions.
Telemetrics
has qualified and skilled staff with considerable experience in
arbitration and mediation in the technology and technology related
industry.
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