Mediation is meant to be a quick, informal, flexible and comparatively inexpensive process which is of a confidential nature and is conducted on a without prejudice basis. Although there are different styles of mediation, certain characteristics are inherent in the concept:
• the disputants play an active role in reaching an agreement and remain responsible for the agreement
• the mediator remains neutral and unbiased;
• the mediator does not make decisions for the parties, but gets the disputants to negotiate and reach
conciliation on issues; and
• the process is private and confidential. Information and facts may be disclosed without fear of any
concessions or statements being used against the specific party in later litigation. (It must be noted though that a signed agreement is binding.)
Despite mediation being an informal process, it still operates in the “shadow of the law” because there are legal rules pertaining to law of contract between individuals.
Although mediation is in many cases better suited for construction dispute resolution, there are circumstances where the adversarial process (litigation) may be more appropriate.
Such may include the following:
• where there is a substantial power imbalance between the parties which the mediator will not be able to redress;
• where one or both parties are totally unassertive or unwilling to participate in the process;
• where the business of one of the parties becomes insolvent;
• where complicated legal issues are involved; or
• where there is a very high level of conflict.