Mediation is a process in which a third, neutral person, a mediator, directs communication between conflicted parties and, using special techniques and skills, helps with negotiations aimed at reaching a mutually acceptable agreement that will help settle the conflict or dispute in question.
In order to achieve this aim, mediators predominantly use communication and negotiation skills, but cannot make a decision regarding the dispute or impose a preferred solution.
PRINCIPLES OF MEDIATIONS
Mediation is a process whose phases and steps are not strictly defined by law, thus belonging to the group of informal dispute resolution methods. Therefore, mediators, in their everyday work, lean on the basic principles, with some of the most important being: voluntariness, confidentiality, informal approach, privacy and urgency.
Voluntariness is probably the basic principle of mediation and its defining point: the conflicting parties decide whether they will enter the process of mediation or not, they can choose their mediator and independently decide whether they will sign a partial or complete agreement.This also means that the conflicting parties can abandon mediation at any given moment and continue to resolve their conflict using another type of procedure. This principle is the greatest advantage of mediation when compared to other types of conflict resolution, because there is no imposition of settlement, making the parties completely in control of the outcome.
The principle of confidentiality means that all proposals, statements or offers stated during mediation, aimed at resolving the dispute through negotiations, cannot be used in another procedure or publicly disclosed, unless the parties do not agree otherwise. This principle is one of the general standards of mediation and is binding for both the parties to the dispute and the mediator. The very fact that mediation is taking place is confidential. On the other hand, internal confidentiality dictates that mediator cannot share information provided by one party, in a private conversation, to the other party without explicit authorization. This is very helpful when creating the conditions for open and direct communicationbetween the parties and the mediator, which, as a rule, leads to a simpler and faster resolution of a dispute.
The very process of mediation is not regulated to the smallest detail; it is directed and lead by the mediator in agreement with the interested parties. Mediation process has its phases, while a mediator has his goals and tasks; nevertheless, the exact order of the phases is not strictly prescribed – it depends on the area of mediation, circumstances of the dispute in question, needs of participants and mediator’s style. Therefore, we can say that mediation is an informal process, in contrast to litigation or other formal procedures for dispute resolution, where everything is prescribed and regulated to the smallest detail. That is why we often say that mediators direct the process, while the parties to the dispute control the result.
In contrast to litigation, which is public by definition, mediation is a strictly a private process. This means that mediation exclusively involves only the mediator, the parties to the dispute, their representatives or attorneys and, possibly, third parties, but only if the parties agree so. This principle is very important because it enables the parties to share their deepest personal and business needs with the mediator – something that is impossible if the dispute is made public.
We also say that mediation is urgent. Usually, mediation takes less time than litigation and a settlement is usually made after one or two mediation sessions, which can be organized within two to three months, at the most. Besides, mediation cannot lead to preclusion, because the Law protects the parties from statute of limitations, northere are losses if an agreement is not reached. Therefore, mediation is an ideal attempt to peacefully resolve a dispute before initiating any formal procedure.
AREAS SUITABLE FOR
There is not a single area of social life that is not suitable for mediation. Nevertheless, it does not mean that each individual case is suitable for settlement through mediation. Mediation is applied in the following areas: property disputes, family disputes, labor disputes, commercial, consumer, compensation disputes, disputes between neighbors, communal disputes, as well as other conflicts in local communities, financial, bankruptcy and executive matters, in addition to almost all disputes that can be brought to court or other organs.
On the other hand, there are certain cases when mediation is not the best solution for resolving a dispute. Most of all, this concerns cases that come under the exclusive jurisdiction of courts or other bodies, family violence or other types of violence, disputes involving elements of fraud, etc. In addition, in certain cases, parties entering mediation process could decide to make the settlement public or demand a solution that will have the power of precedent for all future cases and, therefore, are compelled to opt for another, formal way to resolve a dispute.
In contrast to judge or arbiter, mediator is not authorized to make a decision that would resolve a dispute. Mediator is not an attorney or a legal advisor to parties to the dispute. Mediator is neutral and has to provide equal position for all parties. Mediator does not act based on evidence and does not decide who is right or wrong. Instead, mediator helps parties to the dispute to identify true source of the dispute and encourages them to look towards possibilities for overcoming the problem in the future, as an alternative to punishment, vengeance or establishing responsibility for past events.
It is only in extraordinary circumstances that a mediator gives proposals or opinions on “fair solution” of the dispute; principally, his task is to help the parties to the dispute to recognize joint interests and needs in a search for possible solutions that they will adopt on their own. However, in exceptional situations that will be described later on, a mediator can state his opinion; which is in no way binding for the parties.
THE ADVATAGES OF
MEDIATION IN COMPARISON WITH COURT OR OTHER PROCEEDINGS
In contrast to court proceedings, which are formal and compulsory for the defendant, mediation is a completely informal and voluntary procedure in which both sides enter consensually. In addition, mediation is a private procedure that excludes the general public. Mediation does not include presentation of evidence or proves which side is right; on the contrary, with the help of a trained mediator, the parties to the dispute negotiate and focus on issues they agree on. In contrast to court proceedings, where a judge makes the final decision, in mediation the parties to the dispute make a joint decision in the form of an agreement, while the mediator represents a neutral third party that controls the procedure and helps in negotiations that lead to a joint solution.
A mediator is responsible for providing an uninterrupted mediation process, while the responsibility for the outcome of the dispute settlement depends on the parties. One of the important qualities of mediation is a cheap and quick procedure, in contrast to litigation, which lasts longer and is financially burdensome for both parties. Mediators work in an atmosphere that must not resemble judicial or any other formal proceedings that involve making decision that is right or wrong. Instead, a mediator has to establish an atmosphere suitable for constructive conversation and negotiation that will lead to a joint agreement.