Mediation, a way forward
July 6, 2016
Disagreements, disputes and conflicts are just inevitable. The worst bit about such a situation is that when relationships are strained and deals turn sour, it is difficult to mend the bridges between the parties. Many a times, the disputes end up in court. But then again, not everyone can afford a traditional lawsuit. As a result, many people do not get redress at all.
But this may now be a case of the past, as Fiji now has its very own Fiji Mediation Centre (FMC). The Centre is involved in facilitating mediation through which the members of public can resolve their disputes amicably.
With the establishment of FMC and following the accreditation of 14 Mediators, the Fijian consumers will be able to take their grievances/disputes against the financial institutions, insurance companies, traders and service-providers, landlords to find a solution.
Virtually everyone who puts forth a good faith effort in mediation emerges with an improved understanding of the conflict and a better perspective on the issues in dispute and of the other party’s needs and interests. And, finding a middle-ground solution helps in putting a closure to the problem which may have been bothering both the parties for a long time. So many disputes are fueled by emotion, anger, pain and the desire for “justice”. Mediation provides a win-win situation for both the parties, as they play an important role in formulating the terms of the settlement.
Mediation is an informal conflict-resolution process brought before an independent, neutral third-party person who acts as a mediator. Mediation cases give the parties the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement in a way that would never be possible in a lawsuit.
Imagine, two parties in conflict, coming face to face to discuss the problem which has been bothering them, under the guidance of a third-party. The objective of this process is to find a middle-ground. Even when the parties are unable to settle their dispute, they have little to lose by participating in the process and are usually better off than not having tried mediation at all.
By agreeing to mediate, the parties do not give up any rights to pursue other alternatives for resolving the dispute. They can still pursue litigation or resort to arbitration if things do not work out in the mediatory process.
The Council would like to urge consumers who intend to enter into agreements to have provisions on mediation in their contract or agreements. They could include the following provisions in their contracts:
For use before a dispute arises:
All disputes, controversies or differences arising out of or in connection with this contract, including any question regarding its existence, validation and termination, shall be first referred to mediation in Fiji in accordance with the Mediation Rules of the Fiji Mediation Centre .
For use after a dispute has arisen:
All disputes, controversies of differences arising out of or in connection with this contract, including any question regarding its existence, validity or termination, may, notwithstanding the commencement of any other proceedings, be referred to mediation in Fiji in accordance with the Mediation Rules of the Fiji Mediation Centre.
The above provisions will enable parties to amicably resolve their matters by way of mediation without having to resort to litigation in courts of law.
Benefits of mediation:
- Cost: Businesses and consumers can save time and money and emotional stress through early resolution of the dispute. It saves money, as the disputes are promptly settled or if not settled are referred back to the court immediately.
- Speed: Disputes can be dealt with promptly, as compared to lengthy legalistic process of the Court.
- Privacy: Complainants and respondents can resolve the dispute in privacy without the details of the dispute and its resolution becoming public.
- Informal atmosphere: Mediation provides the informal setting and atmosphere, which is conducive to productive communication between the parties. Many of the tensions and stresses of the adversarial process are avoided.
- Separating the people from the problem: Mediation helps in separating personal issues from the substantive legal issue in dispute by reducing tension and making settlement more likely. Very often in disputes, personal feelings or emotions play a powerful role in fueling litigation.
- Preserving relationships: Mediation to a great extent preserves relationship between the parties after the dispute is resolved where parties are willing to deal with each other. Conflict is more than just disagreement. It exists when neither party is willing to consider an alternative and the issue becomes an ongoing dispute.
The Council is working closely with the Ministry of Justice in raising awareness about this system of resolving disputes. This initiative is supported by the European Union under the project, “Creating Fair Marketplace for Consumers through Consumer Information and Redress Mechanisms”.
The members of the public can also contact the Council and the Ministry of Justice for more information on mediation.