Mediation

What is Mediation

Mediation is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Mediation is usually a voluntary process, although sometimes statutes, rules, or court orders may require participation in mediation.

Mediation is essentially a negotiation facilitated by a neutral third party, the mediator, and does not produce a judgment but seeks a voluntary solution that is acceptable to all the parties involved in a dispute.

The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation.

While court proceedings are authoritative, the mediator facilitates the resolution of the parties’ disputes supporting them in finding common ground, often offering creative solutions and drafting a final settlement. A court action or even an arbitration proceeding may exasperate the relationship to the extent that there may be no more room for further cooperation.

Mediation has many positive qualities as it appears to be the least expensive, quicker, prompt, most attainable method to solve disputes, and is based on a collaborative approach where each party is motivated to work together to solve the issues and reach best agreements. It is expected that the results agreed will benefit both parties or, at least, avoid that anyone is worse off after the mediation. Another advantage is that parties can stop the mediation process at any time by either party dissatisfied with the process.

If a solution is reached, mediation agreements may be oral or written, and content varies with the type of mediation. If an agreement is not reached, however, the parties may decide to pursue their claims with other instruments.

What is not

Mediation is often confused with other types of alternative dispute resolution (ADR), among them arbitration, ombudsman procedures, conciliation and structured negotiation.

The mediator aims to bring parties to a common solution, helping to preserve friendly relationships, focusing on the common ground instead of finding faults and searching for vindication. Accordingly, the mediator is not preset to give a judgment but tries to empower the parties themselves to solve their conflict

To understand the main differences with other types of ADR, is good to start from the main features of mediation: its voluntary and flexible nature, the mediator’s lack of adjudicatory competence and the self-determination of the parties. Both arbitration and mediation, for instance, employ a neutral third party to oversee the process, however arbitrators and ombudsmen have the competence to issue (at least partly) binding decisions, in mediation it is up to the parties and not the mediator to decide whether and how to solve the conflict. A conciliator has stronger influence on the results than a mediator, by, for example, announcing a (nonbinding) conciliation decision.

Mediation in Europe

Mediation as a conflict resolution method is promoted by the European Union and all its member states. The Green Paper on alternative dispute resolution in civil and commercial law, the Code of conduct for Mediators and the EU Directive 52/2008 of the European Parliament and of the Council of 21 May 2008 on certain aspect of mediation in civil and commercial matters, set the ground for enhanced access to justice by European citizens while coping with complex issues and increasing lengthy proceedings due to the intensification of trade and the mobility of citizens, the expansion of e-commerce and third country migrations. The Mediation Directive applies in all EU countries and to cross-border disputes in civil and commercial matters. It covers disputes in which at least one of the parties is domiciled in a Member State other than that of any other party on the date on which they agree to use mediation or on the date mediation is ordered by a court.

  • The principal aim of this legal provision is to foster the recourse to mediation in the Member States.
  • For this the directive contains five substantive rules:
  • It obliges each Member State to encourage the training of mediators and to ensure high quality of mediation.
  • It gives every judge the right to invite the parties to a dispute to try mediation first if she/he considers it appropriate given the circumstances of the case.
  • It provides that agreements resulting from mediation can be rendered enforceable if both parties so request. This can be achieved, for example, by way of approval by a court or certification by a public notary.
  • It ensures that mediation takes place in an atmosphere of confidentiality. It provides that the mediator cannot be obliged to give evidence in court about what took place during mediation in a future dispute between the parties to that mediation.
  • It guarantees that the parties will not lose their possibility to go to court as a result of the time spent in mediation: the time limits for bringing an action before the court are suspended during mediation.

Most EU countries now comply with the Directive, including Belgium, France, Germany, Italy, Poland, Romania and Slovenia. Some have even extended the scope of the process beyond the Directive to cover domestic disputes, making it mandatory in certain situations.
For example, Italy implemented the Directive by legislative decree. This applies not only to cross-border claims but also to certain domestic disputes.

 

Useful links:

EU Overview on Mediation on the e-Justice Portal

Mediation in the European Union: An Introduction – european e-justice