FACTORS RELATING TO THE PARTIES
Factors relating to the parties provide the most important determinants when deciding whether or not a dispute lends itself to mediation, as of course, the parties are the essential key to mediation. Basically, if the parties are not ready and willing to mediate, mediation cannot take place. If a mediation does take place against the parties wishes, the process will not work because one of the principles of mediation is participation, and the parties will not constructively participate if they are forced.
Another factor to consider when judging a disputes suitability for mediation is whether the parties have legal representation. If one party does and the other does not, then it is not fair to mediate. Unlike the court system, a legal representative will not be appointed to the non-represented party. Therefore both parties need to consent to either be represented by legal advisers or not. It is not essential that legal advisers are present in the mediation session.
However in most cases, it is strongly advised that the parties seek legal advice before signing the legally binding agreement. A final factor to consider is the legal capacity of the parties. A minor cannot enter a mediation session for obvious legal reasons, the same goes for a person with mental illness or disability that would effect their decision-making ability. Once these are considered and no difficulties found, the remaining points on the checklist need to be considered.
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