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Is it possible to avoid court? What is mediation?
You turn to a lawyer for help to find someone who knows how to ensure a desired result. "To ensure a desired result" implies getting that result now. What does a lawyer advise? To resort to the law (or defend you in a suit brought against you in a court of law).
Any court proceedings are known to be ineffective and slow. Historically, there are three kinds of disadvantages in arbitration (court) proceedings. They are:
- Coercive and therefore problematical when it comes to enforcing or abiding by a decision, especially in Russia.
- Expensive, i.e., proceedings often cost more than the value of the outcome.
- Not agreed on with the parties involved, i.e., the parties do not in any way participate in these proceedings to effect a change in the outcome either way, yet they are forced to abide by the judge's decision; they make their arguments and then get a third person's opinion, as well as pay legal fees for the case - an expensive way to pay for an independent evaluator.
The developed countries have a long-standing and even law-governed practice of mediation that does not have any of these disadvantages. Mediation is something you can grasp and understand, is much less hostile and much less expensive, takes much less time and is much more likely to ensure the desired outcome that meets the interests of both parties.
Fortunately, every conflict contains the seeds of a constructive resolution. Yet the disputing parties' insistence on their position may harm the fruition of these seeds or nip the sprouts in the bud, thereby missing the opportunity for a constructive resolution. Conflict is capable of placing people in a stance of confrontation, hostility and aggression, given their natural instincts, habits or the strategy they employ. People involved in a conflict need a third party - a mediator - to help them settle or overcome their conflict-driven behaviour. A mediator can assist opposing parties to move away from antagonism towards negotiation and from negotiation to a resolution.
How did mediation originate?
In early times justice was quick, unpredictable and subjective. Luck or chance played a large role in deciding the outcome of any settlement of a conflict.
People who wanted to have a business matter settled in a serious professional way needed to eliminate chance from decision making, so they created their own systems, such as chambers of commerce. This made it possible for businessmen of the past to settle their conflicts without killing each other and without having to resort to unpredictable judges and juries.
This is how the prototype of contemporary arbitration courts came to be. The advantages were that arbitration was more predictable and arbitrated decisions were final. The disadvantage was that the result was either a decisive victory or an utter defeat; both parties had to obey the judgement, regardless of whether they agreed with it. More often than not, arbitration puts an end not only to the conflict, but also to the relationship between the arbitrating parties.
It is common knoWGedge that a great many things have changed since the Middle Ages. Some things have improved and become quicker and less expensive. Unfortunately, this does not apply to judicial proceedings. Court proceedings have become even more prolonged and expensive.
The mediation method of former times, which has survived over the centuries, has therefore been revived in the developed countries.
What is mediation?
Mediation is a voluntary confidential process in which a neutral third party helps attain a mutually acceptable settlement of a conflict. It is also a useful instrument for avoiding possible conflict or making a decision.
Mediation is a process of negotiation between the disputants organised by a neutral party, a mediator, on neutral territory, in an attempt to help the disputants reach agreement on a point in dispute.
What does the mediator do?
The mediator is not a negotiator representing one of the parties, nor is he an arbitrator who makes a decision that is virtually an ultimatum. The mediator has no enforcement power, nor does he make decisions or define who gets what.
Unlike the usual enforcement system in our society, mediation is a non-accusing and non-binding process. In other words, the mediator does not judge, nor does he make a decision or award. The mediator focuses on the parties' present and future needs and interests, as well as the needs of those who might be potentially affected by the mediated agreement. The mediator's role is to create a safe and neutral environment, facilitate communication between the parties and lead them to make a decision of their own free choice and will.
Court proceedings are public, so it is impossible to ensure that your information will be kept confidential in proceedings. A mediator does ensure confidentiality: he or she does not encroach upon a party's right to disclose or not to disclose any information. The mediator does not keep any records, and when there are no records, it is much more difficult to violate confidentiality and try to use the mediator to prove some point or circumstances that are not in the parties' agreement. Also, after every session of mediation proceedings, you will be advised to take with you and destroy any notes you have made.
The mediator should be capable of determining and identifying the disputants' interests. Sometimes a party on one side of the negotiation table has interests that are incompatible with the other. And these interests, if the mediator identifies them, may only be disclosed privately, but are never brought out for discussion by both parties. The mediator should not expose any weak points in one party's position in the presence of the other party.
The mediator can assist parties in conflict to:
- organise the negotiation process;
- examine each issue and find a solution to the most 'burning' ones;
- separate the disputants from each other and sort out the problem;
- examine all points of view as well as probabilities or chances for future success to the satisfaction of both disputants;
- "build a bridge" between the parties;
- see a way out of a conflict situation.
Why is mediation necessary?
Simple. In the majority of cases, if people are capable of settling differences by discussion and negotiation, they are likely to get better results quicker than by confrontation or going to court. But in most cases, this can hardly be achieved without some third party's assistance. Strong emotions, hostility, principles, the strategy of confrontation, differences in social and other standings, and indeed many other obstacles or barriers may hinder constructive negotiation.
Statistical reports in the developed countries show that 83-85% of all mediation cases are successful. Moreover, 5-10% of the parties involved in mediation reach a full or partial agreement within a short time after mediation.
Even if no agreement is reached, involvement in mediation helps develop a better understanding and satisfaction between the parties concerned: mediation has a positive influence on the parties' mutual acceptance and their behaviour in court proceedings.
The modern method of mediation works as follows:
- The parties come together to meet a mediator. The mediator then invites them to sit down and explains the rules of the mediation procedure, and each party presents its own position in the case. Being already familiar with the parties' general position from previous information provided by the parties, the mediator can ask questions and make comments to assure the parties that he has properly understood their positions. This is often done by re-phrasing statements from different points of view. This also allows the parties to look at the subject matter from an angle they may not have considered before. Either party has a chance to ask questions and make comments after the other party has made its arguments.
The parties then separate and go to different rooms. As a rule, these are adjacent rooms that are much more comfortable than a courtroom. The mediator has sessions with each party separately, helps them examine and review the case, and then obtains each party's authorisation to disclose information and proposals to the other party, and this is repeated as many times as necessary. The mediator is not necessarily looking for some law-regulated solution. Instead, all mediators consider both parties' interests, needs, and concerns, and then develop an approach to satisfy all the needs of both parties to the extent possible. It is not surprising in this unique, highly interactive, synergetic process that any of a number of potentially acceptable solutions may exceed all expectations.
- The parties keep moving towards a decision, rarely meeting face to face until the right time comes to sign an agreement. An agreement in writing is often a practical objective of mediation, but not necessarily the final or most important goal. At any rate, once an agreement is made and signed by both parties, it becomes a binding instrument. The parties' legal advisers and lawyers very often take part in the process of mediation.
When is mediation necessary?
When there is a conflict and the parties involved are seeking a solution or need the most effective way of proceeding to find one. Especially when the parties in conflict want or need to continue their relationship after the conflict is settled.
Mediation is appropriate in the following situations:
- When negotiations reach a deadlock. This happens when both parties have stopped trying to reach agreement, when one party takes an unreasonable stand or does not consider the case as a whole, or when a deadlock leads to a collision of styles and personalities. In this situation mediation is an opportunity to use the process to improve reasoned thinking, make the other party aware of the full scope of the case, and bridge the gaps between styles and personalities.
- Mediation is appropriate when recourse to court proceedings is too expensive. In general, mediation stands an 85% chance of resolving a conflict for about 5% of the normal legal fees. Mediation reduces risks associated with court proceedings. Finally, mediation often reduces the anticipated costs of the suit in terms of time and money the plaintiff intends or plans to spend on settling the case.
Is mediation the best method?
Probably not, but a comparison of the mediation method of early times with the way mediation works today shows that virtually every element of the process has evolved so that it works in the best possible way today.
In the past mediators would get the parties involved all the time in a face-to-face negotiation process. Then they found that the process proceeded better when the parties separated once opinions had been exchanged.
Mediators would enter into the process by expressing their own opinion. However, success has turned out to be more likely under the guidance of mediators who did not give their opinion at all or revealed it only after the mediation process was finalised.
Mediation used to be public. Mediators have determined that the process went better when it was closed and confidential.
Mediation used to involve the appointment of one person by each side. Mediators found that the process went better when the parties also had legal advisers, lawyers, etc.
The really important thing that has happened over thousands of years is that mediators, working by trial and error, have found a method that works.
It is a pity that Russia is discovering it only now.
You have already been involved in mediation!
Processes similar to mediation happen all the time. Who of you does not remember running to a nurse in day care and asking her to settle some childish conflict when you wanted to be the only one to play with some very special thing that was not yours?
Remember? At school we would call on a teacher, a pioneer team leader, a group monitor or some informal youth leader to act as a neutral, impartial arbitrator.
The need to find an impartial, neutral and respected mediator is inherent in the very nature of an argument. This is exactly the type of person that disputing parties hope can settle a conflict.
Mediation is what diplomats use to prevent countries from going to war or help fighting countries restore peace. From the Middle East to Bosnia, politicians regard mediation as the only approach.
Can you participate in mediation through a representative?
What persons should participate in mediation? People who are authorised to make decisions. If the company president always consults the principal shareholder, then the shareholder should participate in mediation. If the plant director turns to the Chairman of the Board of Directors for advice, the Chairman should participate. If the wife in a divorce case seeks her mother's advice, then her mother should take part in mediation. If persons who make decisions do not participate, the process may turn into something other than mediation.
Can the meeting place be somewhere else?
A general requirement for a meeting place is neutrality, which can affect the process. This means a place that reliably ensures neutrality, confidentiality and exclusivity. The meeting place is sometimes as important as a person and is part and parcel of the process, too. The most common meeting place is the office of a law firm that provides mediation services. This office is usually furnished with everything needed for conducting mediation.
How to convince the opposing party to participate in mediation?
When trying to convince a counterpart to have a conflict mediated, one can explain that:
- The mediator does not make any decision - the parties do;
- Either party has the right to terminate mediation at any time;
- No agreement is binding unless and until it is signed by both disputants.
- Reaching an agreement is not obligatory.
And finally, sometimes you do not need a mediator to organise a meeting to work out an agreement with an opposing party and attain the desired result. In spite of the fact that such meetings are no longer in fashion because of all too many failures, even if conducted with the right participants and on the right cases, it is still possible to make such meetings produce a better outcome.
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