1. SIMAD UNIVERSITY
Keyd abdirahman salaad

2. Simad university Alternative Dispute Resolution Chapter 3 Mediation
Faculty of Law
Alternative Dispute Resolution
Chapter 3 Mediation
Keyd abdirahman salaad

3. Chapter 3 Mediation This chapter covers the following topics:
Meaning of mediation
features of mediation
advantages and disadvantages of mediation
Proceedings of mediation and the role of mediator
Four Models of Mediation
Legal effects of mediated agreement

4. Mediation Defined
Mediation is a process in which an impartial third party assists disputants in finding a mutually acceptable solution to their dispute. Mediation is both voluntary and confidential.

5. Meaning of Mediation
Mediation is a process that employs a impartial person or persons to facilitate negotiation between the parties to a dispute in an effort to reach a mutually accepted resolution. The mediators, who are hired, appointed, or volunteer to help in managing the process, should have no direct interest in the conflict and its outcome, and no power to render a decision.

6. Mediators have control over mediation process but not the outcome of the mediation. it is differs from negotiation so long as there exist a third party involvement. Mediation has become a very important and viable alternative to adjudication and arbitration in the legal system (labor disputes, family, business, and commercial disputes).

7. Features of Mediation
The Core Features of Mediation The core features of mediation highlight the flexibility in mediation practices: • Mediation is a decision making process; in which the parties are assisted by an outside intervener, the mediator; • who attempts to assist the parties in their process of decision making; • and reach an outcome to which each of them can assent; • without the mediator having a binding decision making capability.

8. Mediation has the following features:
1. Voluntary 2. Non-binding 3. Private 4. Neutral mediator 5. A settlement negotiated by the parties

9. Voluntary
The consensus between parties to a dispute is important to initiating the mediation process. Mediation is voluntary and all parties are required to participate. If a party decides to abandon the process, then the purpose is defeated.

10. Non-binding
The process of mediation does not bind any of the parties in dispute and does not impose any obligation on them to settle. Settlement depends on the participation and agreement of parties involved.
Disputants have the right to walk away from mediation in anytime.

11. Private
unless agreed by the parties, what is discussed during mediation remains private and confidential. Information cannot be shared and both parties will be required to sign a confidentiality agreement prior to the commencement of the mediation. Any information provided to the mediator in a private meeting with one party will be kept confidential unless it is agreed that it can be shared with the other party.

12. Neutral mediator
Mediator must be is neutral in all aspects of the process, must not be a person interested in issues in dispute, not related or connected to any of the parties through whatever means to avoid bias. The Parties must bestow enough authority on the mediator to perform his duties as neutral person in the mediation.

13. A settlement negotiated by the parties
Mediation is one of the means that parties may resolve their disputes on a disputed matter. Mediation seeks to create an atmosphere where parties to dispute are able to reach an agreement that is fair and maximize the interest of all. The flexibility of the process create avenue for parties to properly address before reaching a settlement.

14. Advantages of mediation
It is reconciliatory to the parties because it takes away animosity and suspicion and brings about openness and amicable resolution of disputes. This helps parties to preserve relationships and even open up new opportunities for enhanced future relationship (business or otherwise).

15. Involvement of the mediator in the mediation increases the chances of reaching an agreement as the mediator acts as break-barrier between parties in dispute unlike Negotiation.
Mediation is flexible as there are no set rules or binding laws except those that the parties agree amidst themselves, they set the rule of the process and the voluntary nature of the process gives it the credibility and integrity on any agreement reached because the parties are in charge.

16. Disadvantages of Mediation
The confidential nature of mediation process gives no room for a culture of precedent development.
Mediation does not resolve dispute and differences which means that mediation does not guarantee reaching an agreement.
Mediation may fail due to its voluntary which makes the parties are equipped an exit option and leave mediation whenever they feel like that.

17. Proceedings of Mediation and the role of the Mediator
A . Introduction and setting frame work
- it’s the opening stage of mediation and the mediator takes the lead at this stage and his role in this stage are:
Welcoming the parties;
Informing the parties his impartiality and neutrality and that his role is to facilitate the talks between the disputants

18. Helps the parties to set up courtesy rules like:
disputants should respect the view of the other party.
disputants can leave the mediation at any time and they will not be coerced in the solution.
mediation could be taken place with the presence of mediator and parties in the same ceiling or private meeting with the mediator.
Information discussed in mediation is confidential: issues revealed during mediation process remain secret.
A mediator can not be called as a witness at the future proceedings and that the mediator notes can not be cited.

19. B . Statement Taking
Parties explain the dispute from the own view point and the role of mediator in this stage are:
Making sure that each party expresses his view on the dispute matter without interruption and obstacles
Taking notes on the interests of the parties in the issue during expressing their views
Summarizing the notes taken and checking its accuracy.

20. C. Agenda Construction
Parties suggest topics, agree on the list of the issues, and agree on the priority of agenda to be discussed.
The mediator asks questions to understand perceptions and underlying interests of parties.
The mediator tries to identify facts and issue that are in dispute and those which are not in dispute and lists it.

21. D. Exploration
In this stage, parties discuss the agenda that is been made by the mediator with their consent;. The mediator here encourages parties to talk each other directly as far as the dispute or the issue is theirs.
mediator also directs parties to move from blame to understanding each other.
When things are not good between the parties; mediator intervenes and assist them on the issue.

22. E. Separate Meeting
A separate meeting is one of the techniques used by the mediator in conducting the meditation process to get the real intention of parties mediator can arrange separate meeting with each of the disputants.
These meetings create an opportunity for the parties to explore frankly and in confidence the issue in the case and option for settlement with the mediator.

23. The benefits of having separate meetings by neutral party include; i
The benefits of having separate meetings by neutral party include; i. It enables mediator to build closer relationship with parties ii. It avoids firm position of disputing parties that they hold as the time of joint session. iii. Allow for deeper and sustainable discussion on the issue with out argument or interruption.

24. F. Negotiation and option generation
One of the main ways to generate option is brain storming. It is conducted by out lining the aims of the session by mediator. It is conducted to identify problems to generate feasible ideas as a solution to the problem. After generating all possible ideas or options, it is useful for an efficient brainstorming that the mediator looks for common theme or categories and grouping the problems and ideas.

25. G. Option selection
The disputants to assess the options generated and comment on options that may be feasible or that may be impractical.
The mediator may afford objective criteria or bench marks to help disputants in choosing a best option and the ones which is conceived as fair by both parties.
to adopt an option, there should be a criteria that can be measure on that option which in turn makes easier for the parties to reach an agreement

26. H . Closure
The disputants reach an agreement, they can put their agreement in writing. The parties can then determine with the assistance of the mediator, what steps they need to take to implement the agreement. Such as when, where and how the agreement has to implement will be determined.
If there is no agreement, the mediator can assist the disputants to determine whether there are any issues that they can agree on.

27. Four Models of Mediation
The four models of mediation are used in different jurisdictions and subject areas • Facilitative mediation- where the parties are encouraged to negotiate based upon their needs and interests instead of their strict legal rights. • Settlement mediation- where parties are encouraged to compromise in order to settle the disputes between them. • Transformative mediation- where the parties are encouraged to deal with underlying causes of their problems with a view to repairing their relationship as the basis for settlement. • Evaluative mediation- where parties are encouraged to reach settlement according to their rights and entitlements within the anticipated range of court remedies

28. Legal effects of mediated agreement
If the matter is settled at mediation, the mediation agreement, as observed from practice and contents of laws on this regard, is considered to be a contract and is enforced under the general principle of contract law.