What is Mediation
Mediation is a form of alternative dispute resolution of conflict (ADR) between two or more parties, with the assistance of an impartial and neutral third person – mediator. This is a voluntary process that is conducted only when both parties agree to it.
The role of the mediator:
- Mediator is not an arbiter – he/she does not make any decisions; he/she solely conducts the process while the parties are those who are in control over the process and its outcome
- Mediator is highly qualified, specialized in different fields of mediation and trained to work under difficult circumstances
- Mediator is a facilitator who by employing different methods and skills helps in negotiations directed to reaching a mutually acceptable agreement
- On parties’ request, the mediator may even provide help in composing the agreement
It is the interest of the parties, not the law, that is the only criterion for reaching the agreement.
One of the major advantages of mediation is the fact that you are given an opportunity to resolve a conflict peacefully, satisfying everyone’s needs. This fact enables the parties to jointly explore options for resolving these issues.
Mediation has high percentage of success (80%-85%) mostly because of the structure, timeline and dynamics that “ordinary” negotiations lack.
Benefits of mediation:
- SPEED – While a case in hands of a lawyer or court could last for months or even years, mediation solves problems quickly, sometimes even within a day.
- EXPENSE – Less time means lower expenses; mediator’s fee is significantly lower in comparison to litigation expenses;
- CONFIDENTIALITY – In general, litigation is open to the public, whereas mediation is strictly confidential. It is important to be noted that mediator cannot serve as a witness before a court concerning the information disclosed during mediation. Parties and mediator sign the Confidentiality agreement that prevents them from disclosing the content of mediation. There is no record made of mediation.
- FLEXIBILITY – There are no rules or provisions regulating the manner in which mediation should be conducted. Parties and mediator are at liberty to find the most suitable and efficient way of working during the sessions.
- BETTER COMMUNICATION – Mediator encourages the parties to discuss their issues openly and honestly. This enables better understanding between the parties and leads to re-establishing of broken relationship.
- EQUALITY – All parties are equal. In mediation, no one is accused of being guilty of the problem in question. On the other hand, in court proceedings the roles are at opposite sides during the whole process.
- CONTROL – Parties are in control over the process itself and its outcome throughout the mediation. Court procedure has its own firm rules and procedural flow while the verdict is impossible to predict.
- NO STRESS – Mediation provides the atmosphere of conflict resolution. It is conducted in neutral and pleasant ambiance, whish decreases stress level and anxiety, contrary to litigation wherein parties become and stay enemies.
- WIN-WIN – Compliance with the Agreement is high because it is mutually acceptable and drafted through joint forces, as opposed to litigation wherein one side always loses.
When is mediation possible?
Mediation is possible in all cases that have the following characteristics:
- The dispute is of confidential nature and therefore, there is a need for confidentiality of proceedings
- Parties see their interests as irreconcilable
- Strong feelings or stereotypes are present, which complicates the reaching of an argument
- The parties do not want to engage in civil proceedings, which can be psychologically exhausting
- Time is an important factor in dispute resolution
- Dispute resolution requires special knowledge that judges do not have
- The parties want to avoid the high costs of the litigation, lawyers, experts …
- A win-win solution is required
- Parties to the dispute have the need to be heard and to present their version of the events
- The parties or their attorneys are no longer able to communicate
- Parties are not professional negotiators or they encounter difficulties in starting negotiations
- Party and its counsel are in dispute
- During negotiations, parties have found themselves at an impasse
What are the areas of mediation?
Areas of mediation are:
- Civil mediation, property disputes
- Criminal matters (Restorative Justice)
- Workplace matters
- Family matters
- Community mediation (neighbor disputes)
- Administrative disputes
- Commercial disputes
- Peer mediation
- Peace negotiations