Mutual Fairness In The Mediation Process

1.0 Introduction Based on the court system, several problems may arise such as lack of accessibility, delayed, high cost, ignorance and intimidation. Due to the arise problem, government, business and the community have turned to alternatives method of dispute resolution via channel such as the tribunals and alternative dispute resolution. Alternatives dispute resolution includes mediation, conciliation and arbitration.

2.0 Mediation Mediation is a facilitative process for resolving dispute quickly and cheaply. Through mediation time of going to the court can be saved up. In this case, it won’t consume much of the time. Mediation also can be regard as a method which is done informally. The confidential procedure will be assisted by the

Mutual fairness

This is the third essential prerequisite. The objective of the mediation process is for the parties to reach an agreement that they each believe is mutually fair. The neutral mediator helps the parties reach this agreement but the parties have the responsibility for agreeing to what is fair.

There are two factors which affect mutual fairness in the mediation process. Firstly, mutual fairness demands that self-interests are not the only focal point. The needs of the other parties in the dispute must be understood and recognised. Fuller referred to this when he described the ‘central quality of mediation.’ ‘…its capacity to reorient the parties toward each other not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.’

Secondly, mutual fairness allows the parties to evaluate and weigh societal norms or values in reaching an agreement. Hence, mutual fairness may be affected by the parties’ perceptions of how an agreement affects human values. In evaluating societal norms and values, the parties decide what is mutually fair. The neutral mediator does not impose his or her

For example, agreeing on the rules and procedures for the mediation and preparing for the mediation which includes dealing with the documentation and preliminary exchange of information so that the dispute can be most effectively and appropriately addressed.

b. Phase Two: During Mediation

It is in this phase that we see lawyers and mediators play very different, yet complementary, roles in the mediation process. The mediator facilitates negotiations while the lawyer offers specific legal advice and counsel. Generally, during the mediation meeting, the role of the lawyer would cover the following areas, namely:

i. To allow the mediator to conduct the process and to provide support to the mediator where appropriate. ii. To acknowledge the validity of the other party’s real needs in settlement. iii. To permit and encourage the client to participate fully and directly in the process. iv. To focus the client upon the future, rather than upon the past, and on their real personal and commercial interests, as opposed to their legal rights.

v. To assist the client to communicate accurately and comprehensively and to negotiate constructively and