Any dispute could be brought for settlement through mediation before and during a pending litigation. It is recommended to turn to mediation as soon as the dispute arises in order to avoid deterioration of relations. Often the parties resort to mediation in the process of negotiating a contract.
One or both sides simultaneously have to turn to a mediator or a Mediation Center. Usually this can be done by applying for mediation.
Both parties must agree to participate in mediation so that the procedure could begin.
Selection of Mediator
The Mediation Center to which the parties have turned submits a list of mediators with their qualifications and experience entered.
Schedule a meeting on Mediation
The mediation meeting is scheduled for mutually convenient time and usually is held on a neutral territory, often in the hall of a Mediation Centre or at the Mediator's office.
When the parties are located in different cities or countries, an indisputable advantage for them is the use of on-line mediation.
Fees for Mediation
Fees for mediation are most often paid per hour. The initial payment is usually only for the first session, which duration depends on the time and the wishes of the parties. It is often up to 4 hours.
Joint sessions and caucuses in Mediation
As a rule, the first meeting is held with the participation of the mediator and the two parties. Consultants of the parties are possible to participate too. If necessary, the mediator could schedule further joint sessions or caucuses with the parties.
If parties agree on some or all issues raised about for solving in the mediation process, the very process ends with a final settlement which may be oral, written or written with a notarization. In pending litigation the settlement shall be submitted to court/arbitration for approval as a court/arbitration agreement.
The procedure begins with an opening - the mediator describes the procedure to the parties, its principles and rules.
After the introduction, the Mediator will allow each party to describe its point of view. In this initial session the Mediator gathers as many facts as possible and clarifies as many inconsistencies between them as possible and eventually some overlaps.
When the general discussion between the parties and the mediator reaches the point where no progress is made, the mediator meets separately with each party. During these separate meetings the mediator clarifies the version of each party, searches for facts, priorities, unchangeable positions, hidden interests, and explores possible solutions. The separate meeting is held only with the consent of the parties and the discretion of the mediator. It is completely confidential – what one of the parties shares at this meeting cannot be shared with the other party without permission.
Effective mediators help parties to realistically assess the consequences of possible resolution or continuation of the dispute.
What does the mediator do?
- The mediator has a neutral function. He does not take sides.
- His/her task is to help parties to achieve a mutual beneficial agreement.
- For this purpose the mediator establishes rules and asks questions.
- Hears both sides’ positions.
- Soothes emotions and helps the parties to talk over the merits;
- Helps parties to identify problematic issues that need to be resolved.
- Helps parties to analyze and prioritize their interests and find common interests with the other party.
- Helps the parties to assess the potential benefits and losses and to explore the best and worst option of the concluded agreement.
- Encourages the development of creative and mutually beneficial solutions.
- Helps in the preparation of the settlement.
What doesn’t the Mediator do?
- Does not resolve the dispute instead of the parties; does not consider the pleas of the case and does not determine who is right and who is wrong - during the procedure parties should try to communicate directly with each other instead of persuading the mediator in the rightness of their case;
- Does not take sides, does not provide legal advice and opinions on the dispute;
- Does not circulate information without the explicit consent of the parties.
Role of the Lawyer and other experts in Mediation
The procedure may involve lawyers and experts who take part in it together with the parties or as their representatives. Lawyers help the clients to conclude a settlement which corresponds most closely to their needs and interests. The role of the lawyer is different from his usual role in court. In court the lawyer is acting as counsel, showing the position of his client and seeking the realization of his violated right. In mediation the lawyer is acting as a consultant who gives his client professional opinion about the strong and weak sides of his case based on law and facts and also helps the client negotiate a solution that best suits his interests.
Similar is the role of experts with professional competence in specific dispute areas. They inform and advise the parties on their entitlements, on the strengths and the weaknesses of the case.
The lawyer may advise his client before the beginning of the mediation procedure, at any time during it or may participate in the procedure either with him/her or as his/her representative. The lawyer helps the party to make a realistic assessment of the case and the possible solutions based on facts, law, standards or practices. When the mediation procedure ends the lawyer could help with the preparation of the agreement and if necessary he could assist in the enforcement of this settlement.
It is important for the parties to:
- Negotiate in good faith;
- Respect the other party and the Mediator and listen to each other;
- Observe the rules which are agreed with the Mediator;
- Look for areas where their interests coincide;
- Participate actively in the discussions on various options for settlement;
- Assess realistically their own claims;
- Negotiate a settlement that satisfies at least one important interest of each party.