Mediation

Why to choose mediation instead of going to court or arbitration? – this is the question that people ask themselves when hear “mediation”.  The shortest answer is embedded in the motto: “Mediation does not look for guilt, but rather is looking for parties’ mutual interest and benefits”.

Mediation is a voluntary and flexible procedure for alternative dispute resolution which is performed in complete confidentiality. The mediator is a neutral person, who participates in the procedure with the purpose to support the parties, as to ensure better and more effective communication. His/hers role is to guide the parties in the process of achieving reconciliation and discovering a mutual solution to the problem, which is of both their best interest.

Some of the mediation advantages as an alternative dispute resolution are:

  • Mediation is voluntary and available to everyone. Each party is free to decide whether or not to engage in a mediation procedure. The mediator never takes the decisions. He/she does not make any statements with respect to parties’ liability or guilt, neither suggests ready-made solutions. The core idea is that parties come up with a solution on their own, which reflects their interests. Each party is free to decide which of the propositions made throughout the procedure is feasible for them and which is not. At the same time, each party may suspend or leave the procedure if that suits their interest. Should the mediation procedure end up with a settlement, the latter replicates the opinions shared during conducted discussions and reached consent.
  • The mediation procedure is to be undertaken with respect to the principle of complete confidentiality and mutual trust. Regardless the way the procedure has started – whether according to parties’ own initiative or as a result of court guidance, mediation provides a tailored made approach for settling the dispute. The mediator supports both parties in reaching the best solution, while ensuring legitimacy and mutual respect.
  • One of the main features of mediation is its flexibility, which allows to adjust the approach to the particular characteristics of a dispute. Thus, parties have overview on their rights and obligations and are able to evaluate them with respect to their daily activities, needs and interests. Another one of mediation benefits is that parties get insights of the opposite point of view, to identify which facts are not controversial, to recognise the necessary steps in order to reach a mutual consent and to undertake concrete measures to rearrange their relationship.
  • Another main feature of mediation is the confidentiality. It is should be noted that once the procedure is started neither the parties, nor the mediator can disclose information regarding the procedure or statements expressed within. This is possible in case that the parties have reached a mutual consent to this regard.
  • Within a mediation procedure, each party has the right to invite an attorney or other advisor for help and support. Furthermore, each party is entitled to ask the mediator to suspend or postpone the mediation session in order to consult with professionals.
  • The process of reaching a mutual consent, which benefits the interest of both parties ultimately leads to improved communication, allows for cooperation and helps to avoid judicial proceedings. Sometimes it is the court, who brings mediation as alternative dispute resolution paradigm to their attention.
  • If the parties do not resolute their dispute, they still have the right to initiate court proceedings. In addition, it should be noted that no limitation and prescription periods run while the mediation procedure is ongoing.
  • Mediation is quick and effective. First of all, mediation sessions are to be conducted at a time and a place convenient for the parties and the mediator likewise. Once the parties have come to an agreement to initiate the procedure, they are free to choose when and where the procedure will be held. It can last between few days or months depending on the case circumstances, its nature and parties’ cooperation.
  • Last but not least, mediation e is cost-effective. This is due to its quick and efficient progress, which respectively does not require money overspending and saves valuable time. Usually, the mediator is paid on an hourly basis according to specific rates and the expenditures are evenly distributed between parties.

 


 

Some relevant sources of information:

Green paper on alternative dispute resolution in civil and commercial law
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters
European Code of Conduct for Mediators