Mediation is a flexible, nonbinding and confidential form of alternative dispute resolution (ADR), in which a neutral third party helps parties work towards a negotiated settlement of their dispute. The parties retain control of the decision whether or not to settle and on what terms.

MKMediation employs facilitative mediation methods, in which the mediator will not decide the case on its merits, but will work to facilitate agreement between the parties.

All discussions and documents exchanged during the course of the mediation are to be treated as confidential and without prejudice. Usually, what is said or written cannot be used in later proceedings, but there are some limited exceptions. The confidentiality of the process is one of the key benefits of mediation. Mediation can avoid embarrassing public scrutiny or problematic precedents being set, as might happen in court proceedings.

Mediation offers many benefits to potential litigants:

  • Confidential: Privacy and Confidentiality ensure that negative or embarrassing precedents and publicity are avoided
  • Facilitative: Mediation is a facilitative process which often preserves or enhances business relationships.
  • Low Cost: legal costs and time are drastically reduced compared to the traditional court system
  • Flexible: Mediation may produce outcomes that might not be possible through the courts or arbitration. The result can be new business opportunities and restructuring of old relationships.
  • Voluntary: The mediator has no power to impose its will on the parties. While a party is expected to participate in good faith, the parties can withdraw from, or terminate, the mediation where there is no reasonably likelihood of success.
  • Low Risk: There is “nothing to lose” by attempting a mediation
  • Mediation is non-binding. If unsuccessful, mediation will add time and cost to the dispute resolution process
  • Although nothing said in mediation may generally be used in later proceedings, there is a risk that the inadvertent release of information to the other side may expose a litigant’s strategy. Generally, however, strategic discussions will occur in private sessions with the mediator, who is acutely aware of their duties of confidentiality.
  • The mediator cannot order or require disclosure, although the extent of disclosure can be agreed between the parties as part of the process
  • The mediator will control the procedure and ensure that it is conducted in a way that is fair to all parties. The mediator will:

    • Remain impartial
    • Act as a facilitator with an aim of ensuring that negotiations are as effective as possible
    • Act as an intermediary between the parties by conveying offers, information, questions, and concessions. This can be more effective than face-to-face negotiation because the offer is being communicated by someone who is seen as neutral.
    • Keep all information relating to and arising out of the mediation confidential
    • Ensure that all parties understand and agree to the terms of any settlement reached. However, it is the parties’ responsibility to formalize and document the settlement.

    The mediator does not have authority to impose any binding decision on the parties, though they may provide an opinion as to the merits of the competing positions. There will only be a binding outcome to the mediation if the parties reach an agreement.

    Arbitration is a more formal type of Alternative Dispute Resolution (“ADR”) which involves an independent arbitrator who hears both sides of a dispute before coming to a binding decision.

    MKMediation’s Rules of Arbitration require that parties agree to Final Offer Arbitration (“FOA”), a procedure that is used in many disputes across professional sports and other industries. Through FOA, each party in a dispute prepares a proposal / offer on each issue in dispute. The arbitrator then chooses a binding solution in line with one of these proposals which is closest to their own view of the appropriate outcome. This procedure is opposed to conventional arbitration, in which the arbitrator acts as a fact-finder and determines an award.

    FOA encourages parties to “put their best foot forward” by introducing uncertainty into the arbitration procedure. This uncertainty is considered a “cost” that the parties can avoid by settling.

    The Arbitrator is an independent third party whose role is similar to that of a judge. The Arbitrator will conduct the hearing, analyze any evidence, and hear oral or written submissions throughout the adjudication process. At the conclusion of the hearing, the Arbitrator will issue a binding decision, though they remain constrained to choose between one of the final offers proposed by the disputing parties.

    Any decision made by an arbitrator in the course of arbitration is legally binding in the same way as a court order would be. Under international conventions, arbitration awards or judgments in foreign countries are generally enforceable between jurisdictions.

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