MEDIATION
FAMILY & COMMERCIAL

A Mediator is defined as:

“any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation.“

Mediation, (the most effective form of ADR, Alternative Dispute Resolution), is used where opposing parties want to find a solution to a dispute, yet for some reason cannot reach a settlement through discussion between themselves. In addition the parties involved in a dispute would rather negotiate a settlement, than hand over total control to a complete stranger – a Judge who will decide by Court rules and procedures.

Difference between a Mediator and an Arbitrator or Judge

In contrast to an Adjudicator, Arbitrator or a Judge the Mediator is not a decision-maker. In the typical case of a dispute ending up in court, the parties will obtain a resolution, however this resolution is thrust upon them by the Court. The result probably will leave neither party to the dispute totally happy. In mediation, on the other hand, the parties have control over the solution, and the resolution can be unique to the dispute.

The Mediator’s role is to be an impartial and independent third party, to assist the parties in moving towards and reaching a mutually agreeable settlement of their differences. Mediation is more likely to produce a result that is mutually agreeable, or win/win, for the parties. Often solutions developed by the parties themselves are ones that a judge could not provide.

Mediation, (the most effective form of ADR, Alternative Dispute Resolution), is used where opposing parties want to find a solution to a dispute, yet for some reason cannot reach a settlement through discussion between themselves. In addition the parties involved in a dispute would rather negotiate a settlement, than hand over total control to a complete stranger – a Judge who will decide by Court rules and procedures.

Difference between Mediation and Arbitration or Court

Because the result of Mediation is achieved by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. However, a mediated agreement is fully enforceable in a court of law if it was agreed that the mediated agreement would be binding on the parties.

Mediation is a totally confidential process between all parties. In a mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential; this however should be viewed in the context that the parties have signed up for the primary purpose of resolving their dispute – any lack of relevant disclosure would be likely to frustrate such purpose. Conversely, if a party chooses to disclose confidential information or make admissions in order to promote a resolution of the dispute, then that information cannot be provided to anyone – including any Court Proceedings, Litigation or Arbitration – outside the context of the Mediation. The extent of this confidentially of the Mediation is outlined in the Mediation Agreement and the Mediation Rules which will be signed up to and adopted by the parties prior to the commencement of the process.

This is the one of the main reasons why the mediation process is so successful, as it promotes open and clear discussion between the parties, without the fear of public disclosure or publicity.

The mediator in the dispute is a neutral third party who is trained in conflict resolution, negotiation and in working with difficult situations. Mediators are likely to work as much with the emotional and relational aspects of a dispute as they are to work on the “topical” issues of the matter. The mediator, as a neutral, gives no legal advice, but guides the parties through the problem solving process. The mediator may or may not suggest alternative solutions to the dispute. Whether he or she offers advice or not, the mediator helps the parties to think “outside of the box” for possible solutions to the dispute, thus enabling the parties to find the avenue to dispute resolution that suits them best.