Throughout commercial relationships, it is not uncommon for interests to clash and disputes to emerge. However, it is crucial that these disputes are dealt with in a manner that, where possible, allows this relationship to continue. That is why your New Zealand business may wish to hire a private mediator to assist in dispute resolution. This article will outline:

  • what mediation is;
  • what a private mediator does; and
  • key traits that your business should look for when hiring a private mediator.

What is Mediation?

Mediation is an alternative dispute resolution method and an extension of the negotiation process. In mediation, parties that are in a conflict are brought together to talk and work through their dispute. This negotiation process is assisted by a third party, the mediator, who facilitates the parties in reaching an outcome or settlement that they all can agree to and benefit from. This outcome will then be translated to a written mediation agreement or a settlement agreement.

Your business may wish to use mediation in comparison to other forms of dispute resolution, such as litigation, as it:

  • empowers the parties to negotiate and resolve the dispute themselves in a joint session, rather than having the court impose a decision upon them;
  • allows for more flexible solutions that cater to the parties’ needs and circumstances; and
  • is far less expensive and time-consuming, in comparison to engaging in a court case. 

What Does a Mediator Do?

A mediator is the impartial, third party that assists the disputing parties to find their own resolution to their conflict. 

If you choose to hire a private mediator, they will assist your business in any disputes it has with other businesses or individuals. This assistance will involve:

  • establishing a positive and productive environment for any dispute negotiations;
  • identifying the key issues, interests and priorities of both your business and the other parties;
  • improving and facilitating the communication of ideas and concerns;
  • managing potentially destructive emotions from either side of the negotiation;
  • framing and narrowing solution options; and
  • aiding in the formulation of proposals, agreements or contracts.

What Are Traits That My Business Should Look For in a Private Mediator?

When you are considering a mediator to hire to assist your business in resolving disputes, there are some key attributes and qualities that you should look for.

Professional Training

The first matter you should confirm when looking for a private mediator is whether the proposed mediator is professionally trained. There are a range of institutes and organisations that offer private mediation training and accreditation in New Zealand. 

For example, the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) runs an Associate Programme that provides participants with the skills and knowledge required to effectively resolve disputes as either a mediator or arbitrator. Similarly, the Resolution Institute offers a Mediation Accreditation programme provides participants with a mediation qualification. 

In conjunction with this, you should also determine what level of training the proposed mediator has. 

For example, AMINZ has mediators at the following levels:

  • affiliates;
  • associates; and 
  • fellows. 

Your business should look to see whether the proposed mediator has professional mediator training, and confirm the level of this qualification. This training should also be ongoing and be regularly updated. Doing so ensures that the mediator continues to provide effective assistance in dispute resolution for your business.

Impartiality 

To effectively facilitate a negotiation between two or more conflicting parties, a mediator must be completely impartial. The outcome of the mediation will not be fair if the mediator favours one of the sides of the negotiation.

An effective mediator will be able to recognise their own potential prejudices and biases and counter these, to achieve true impartiality. 

Theoretical Knowledge

As your disputes will be specific to the line of work that your business engages in, it is preferable that your mediator has expertise or experience in settling conflicts in that area. 

For example, if you wish to hire a private mediator to aid in disputes concerning your business’s intellectual property, your mediator should have experience and knowledge in intellectual property dispute resolution.

Trustworthy

Disputes of any nature can relate to sensitive or confidential topics. Your business should be able to entrust the mediator it chooses to hire to handle these issues with care and keep such matters confidential.

Other Issues to Consider

There are also other, more practical matters that you should consider when hiring a private mediator. These matters include:

  • the mediator’s availability; 
  • the mediation fees; and
  • whether these matters align with your business’s circumstances and resources.

Key Takeaways

Getting into disputes is both an inevitable and complicated part of commercial relationships. However, a private mediator can assist your business in ensuring that these disputes are not fatal to these relationships. When looking at potential mediators, your business should look out for the following attributes:

  • professional training, such as an associate mediator qualification from the Arbitrators’ and Mediators’ Institute of New Zealand;
  • impartiality; 
  • specialist expertise; and
  • trustworthiness. 

If your business is involved in a commercial dispute, contact LegalVision’s dispute and litigation lawyers on 0800 005 570 or fill out the form on this page.

FAQs

What is a private mediator?

A private mediator is an impartial, third-party that assists disputing parties in finding their own resolution to their conflict. 

What is the purpose of a mediator?

A mediator should help facilitate, but not force, disputing parties in reaching a resolution to their dispute.

Who is a good mediator?

A good mediator will be professionally trained, impartial, well-versed in the relevant theoretical knowledge to the dispute and trustworthy.

What is the difference between a lawyer and a mediator? 

A lawyer is an individual who is qualified to practise law in New Zealand. A mediator does not necessarily have to be a lawyer but will be professionally trained in mediation.

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