Mediation is an extrajudicial, alternative way of resolving disputes with the assistance of a neutral, impartial and independent mediator, who is appointed jointly by the parties to the dispute in order of reaching a mutually acceptable and enforceable solution by the disputing parties. Settlement of a dispute through mediation is considered one of the most effective methods for resolving conflict situations.
Mediation methods rely mainly on the constructive negotiating process and practical cooperation of the parties. Lawyers from IQ Decision UK help effectively resolve the disputes through the mediation, using professional skills and years of successful experience in this field.
The terms “mediation” and “reconciliation” are sometimes used as synonyms, which can lead to confusion. At present, reconciliation is usually understood as a more directive process than mediation. Accordingly, reconciliation is treated as a mechanism for resolving disputes, in which the neutral third party takes an active, directive role in order to help the parties find a coherent solution to their dispute, while mediation may be proactive, but not directive-oriented.
During the mediation process a mediator does not have the right to make decisions for the participants in the dispute; he only helps them to independently find a way out of a conflict situation. The conciliator, on the contrary, can push the parties to a final material solution.
A judge who has received proper training and obtained mediator qualifications may mediate only in situations where he does not act in his judicial capacity and does not affect the outcome of the process of resolving the conflict by the parties. By definition, a judge appointed to conduct a trial cannot engage in mediation within the framework of it, as the parties know that if their attempts to find a mutually beneficial decision fail to succeed, the judge’s decision will be final.
Mediation should be distinguished from counseling, a process used to help parties resolve controversial issues.
Although the parties must agree to arbitration and accept its verdict as final, the purpose of the arbitration process is not to reach a completely mutually beneficial solution.
Mediation and reconciliation differ from arbitration by targeting an independent search for a rational solution that satisfies both sides, while in the course of arbitration the final decision is made directly by an impartial third party (arbitrator).
In the course of an early independent examination, the parties receive from an expert a non-legally binding assessment of their situation and the legal substance of the case, after which they can discuss and agree on their own decision. Within the framework of the “collaborative law” model, the parties are assisted by “cooperative-oriented” lawyers who use methods of out-of-court conflict resolution and negotiation techniques aimed at meeting the interests of the disputants.
There are two types of mediation – “court-authorized mediation” is provided directly by the court or on its recommendation. The mediation is suggested either by a mediator working in court or by a judge qualified as a mediator, who has the right to carry out the procedure only in those cases in which he does not participate as a judge. In such cases, the courthouse often becomes the place of mediation. “Out-of-court mediation” is a type of mediation that is conducted by an organization or person not directly associated with a court. This organization may be state owned or have a state license, or it may be a private individual or a private company.
The goal of mediation is to achieve a “mediation agreement”, that is an agreed decision that was reached by the parties during the mediation procedure. It should be noted that in some legal systems it is common to use the term “memorandum of understanding” to describe the direct result of mediation. The purpose of this definition is to avoid misunderstanding when the result of mediation can be perceived as a legal act. There is also an “agreement on mediation”, which is a contract between the mediator and the parties to the dispute, and which precedes the mediation and regulates the specifics of the procedure, its cost and other conditions.
Benefits of consensual solutions
Negotiated and consensual decisions are more viable, as they are made by the disputing parties themselves and are more likely to be respected. In any case, the agreed decisions are more beneficial for the parties: each of them can affect the outcome and participate in finding a solution that will be considered fair for both parties to the conflict. Resolving disputes by mutual agreement prevents the fact that one side is considered a “winner” and the other a “loser”.
Compared to other methods of reaching agreed solutions in disputes, the mediation procedure has several advantages. It creates the conditions for communication between the parties in a comfortable, informal atmosphere, thereby facilitating the interaction of the disputants and allowing them to develop their own strategies for resolving the conflict situation.
Mediation is a structured but flexible process that can be easily adapted to the needs of a particular case. It allows you to simultaneously discuss legal and non-legal issues, and also allows for the informal participation of third parties who may not have any legal connection to the case.
Another very important advantage of mediation is that it gives the parties a chance to think about the situation in a more constructive way and prevent or mitigate future conflicts. Since the threshold for participation in mediation is usually lower than the threshold for participation in a judicial procedure, mediation can provide effective assistance to disputants in the early stages of a conflict, before its potential escalation.
Mediation provides parties with an opportunity not to resort to onerous legal procedures. In cross-border disputes, where legal procedures in one country may initiate legal procedures in another country, regarding different aspects of the same dispute, a solution based on mutual consent of the parties is particularly preferable. In addition, one of the very significant benefits of mediation is its financial affordability. Mediation often allows avoiding expensive legal procedures, that are costly, both for the parties and for the state.
You have to keep in mind that mediation is a conflict resolution procedure. If the parties are not completely satisfied – the conflict is not resolved. In the process of mediation, the main task for the mediator is to build a trusting relationship between the parties and clarify the main interests and needs of the parties. Lawyers from IQ Decision UK provide professional advice to companies operating in the field of international trade and help build strong relationships with partners through mediation process.
Enforceability of mediation agreement
One of the most important tools to ensure the appropriateness of the mediation, its effectiveness and viability, is the assessment of conflicts, which allows isolating cases of particular risk. Disputes that are potentially subject to mediation settlement should be analyzed in terms of circumstances that may affect the success of the entire process.
It is also necessary to take into account the risk that an agreed decision reached in the mediation procedure, but which is not legally binding, will not protect the rights of the parties in case of a continuation of the conflict. This may be due to various reasons: it is possible that such a mediation agreement (in whole or in part) contradicts the applicable law, that it is not legally binding and practical, as it was not registered, approved by the court and / or included in the court order.
In transboundary disputes, the legal context is particularly complex: the interaction of two or more legal systems must be taken into account. It is important that the parties are well aware of the law applicable to the conflict to be mediated, as well as the law governing the mediation procedure itself, including confidentiality and the procedure for enforcing the agreement in both (all) legal systems involved.
It is also important to note that mediation and similar procedures that facilitate agreed decisions in the field of international law should not replace, but supplement the judicial processes.
The existence of a close relationship between consensual/conciliation and judicial proceedings is often very productive and at the same time helps to overcome some of the imperfections that are characteristic of both the proceedings and the processes for the amicable settlement of disputes, such as mediation. In addition, despite the fact that mediation and similar procedures carried out at an early stage of an international dispute can help to avoid a lawsuit, in order for the agreement to become legally binding and enforceable in all jurisdictions, further “judicial procedures” may be required.
In this area, close cooperation between mediators and legal representatives of the parties, as well as providing all interested parties with the necessary information from public authorities is very useful.
The specific difficulties of the mediation process and dispute resolution are often related to the fact that these processes often include more than one legal system. In order to come to a mutually acceptable decision for the parties, which will have legal force, it is important to take into account the laws of both (all) legal systems – both national and international legislation applicable in a particular case.
For example, in the United States the experience requirements for mediators may vary by state, but most include minimum number independently performed mediations. The guaranteed quality of mediation can be provided by mediators who have received appropriate training and possess the necessary knowledge, skills and experience. In some states there are special laws regulating the level of mediator training, his qualifications and work experience required for the person to be registered as a mediator.
In the United Kingdom, mediators are not regulated, their activities are not controlled, and anyone can call themselves a mediator. Some mediators have professional qualifications. Others do not. Many mediators are members of professional alternative dispute resolution bodies, which set standards for their members. Standards cover insurance, training and codes of conduct:
- The College of Mediators sets standards for its members, who work in all types of mediation.
- The Family Mediation Council sets standards for mediators who work with divorcing or separating couples.
- The Advisory, Conciliation and Arbitration Service (ACAS) provides employment advice and dispute resolution, including mediation.
- The Centre for Effective Dispute Resolution (CEDR) sets standards for disputes between businesses.
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters directly influenced the adoption of the Law on Mediation in the EU countries, while the legal regulation of mediation is the same for both domestic and cross-border disputes.
Currently, the organizations of mediators in the EU countries set their own requirements for the training of mediators. As a rule, practical experience is required.
In order to develop mediation structures for resolving cross-border disputes, states should consider compiling at the national or international level publicly available lists of international mediators.
The possibility of using mediation or other procedures leading to the amicable settlement of a dispute should be made available to the parties as early as possible. In order to increase the likelihood of a settlement of a dispute, mediation and similar methods should be available not only at the pre-trial stage, but also during all legal stages, including the stage of enforcement of the judgment. The selection of the most appropriate of the available procedures to facilitate the achievement of a negotiated solution at a particular stage of conflict development will depend on the specific circumstances.
IQ Decision UK offers professional settlement of disputes through mediation at the pre-trial, trial, post-trial and enforcement stages.
In a number of states, it is the judicial authorities that initiate the mediation process in order for reaching the settlement of the case. Today, judges are often even required to try to resolve the dispute through mediation.
Judges play a very important role in resolving disputes, prompting the parties to independently make an agreed, mutually acceptable decision. Regardless of whether the participants in a specific dispute received a suggestion to contact the mediator by the competent state authority, the court should encourage the disputants to try to resolve the conflict through mediation or a similar procedure, if it is possible and appropriate in a particular case.
Prior to starting mediation in an international dispute, a preliminary assessment of the applicability of the mediation procedure to a particular case should be made. Attempts to mediate cases that are not subject to this kind of settlement, only lead to a loss of time and money.
In practice, there are two types of difficulties that can drastically affect the applicability of mediation to resolve an international dispute:
- lack of willingness of the parties to mediate;
- extreme opinion polarity of the parties.
IQ Decision UK lawyers strongly recommend you to resorting to an alternative method of dispute resolution before initiating formal legal proceeding. We offer bespoke mediation services for the effective resolution of a conflict situation. In the process of effective conflict resolution through mediation, we will be able to develop a flexible action strategy that will be adapted to the specific case and specific client. This will help to achieve efficient results and resolve international commercial conflicts at all levels.
Costs of mediation
The factor of financial expenses necessary for mediation can often affect the willingness of the parties to participate in conciliation procedures. These costs typically include the cost of a preliminary assessment of the suitability of the case for mediation, the payment of mediator services, travel expenses, the cost of renting the premises in which mediation sessions will take place, as well as the possible costs of translators, experts, lawyers and legal representatives. The fees of mediators, in respect of which hourly wages are usually practiced, can vary considerably in different countries depending on the characteristics of the legal system and the type of services provided by these specialists.
Maximum efforts should be made to ensure that the costs of mediation do not prevent the parties from using this method of amicable settlement of their conflict. Considering the high efficiency of the resolution of international commercial disputes by mediation, some states make mediation in this area completely free or offer a system of free legal assistance to parties involved in the mediation procedure.
Place of mediation
Unless otherwise provided by the relevant legal system, in order to verify the informed consent of the parties to mediation, a written agreement should be concluded between the mediator and the parties on the terms, conditions and procedure for the provision of mediation services. The mediation agreement must be clear, explicit and contain all necessary information about the upcoming procedure. The agreement should clarify the role of the mediator as a neutral and impartial third party. It should be emphasized that the mediator only helps communication between the parties, but does not protect the interests of any of them.
Principles, models and methods of mediation
The essence and quality of the mediation procedure are determined by the underlying principles. As a rule, these principles are specified in the legislation governing the provision of mediation services, in the rules of conduct of the mediator and other relevant legal documents. In most existing definitions of mediation, there is an indication of its fundamental principles, such as the preservation of neutrality by a mediator and his impartiality.
Mediation, by its nature, is based on involving both (all) conflicting parties in the voluntary process of finding a peaceful resolution of their dispute. Volunteering is a fundamental and undeniable principle of mediation.
All necessary information about mediation and related issues should be provided to the parties prior to the commencement of the mediation procedure in order for them to make an informed decision on the possibility of their participation in this procedure. The parties should be aware of the content of the mediation process and the main principles defining it, such as confidentiality, voluntariness, etc., they should receive detailed information on the approach or mediation model used, on the means of reaching a mediation agreement, as well as on possible financial costs related to the upcoming procedure. In addition, the disputants should be informed about the correlation between mediation and the judicial process and that mediation is only one of the ways to resolve the conflict and the participation of the parties in the mediation will in no way affect their right to resort to legal procedures.
The principles of mediating neutrality, independence in judgment, impartiality and fairness are crucial for mediation. They are closely related to each other, although they relate to different aspects of the mediation process. The mediator must remain neutral with regard to the outcome of the procedure. The mediator must maintain independence during mediation. At the same time, the mediator should be impartial in relation to the parties to the conflict.
All negotiations in the process and in the context of mediation, in accordance with the applicable law, must be confidential, unless otherwise agreed by the parties. The confidentiality of negotiations related to mediation helps to create the trusting atmosphere necessary to engage the parties in an open discussion on a range of possible ways out of the conflict.
A consensual agreement between the parties must be of the informed nature. The parties must know all their rights and obligations, as well as be aware of the possible legal consequences of their decisions.
One of the advantages of mediation is the flexibility of the process and the possibility of participation in the procedure of people with no legal status, but who can have a significant impact on the successful resolution of the conflict. However, in each particular case, the mediator must decide on the basis of the circumstances of the case whether the inclusion of the third party in the mediation procedure is effective, appropriate and does not entail the risk of a negative impact on the effectiveness of mediation.
Legal status of mediation agreement
The mediator should assist the parties in developing the details of the agreement reached during the mediation procedure. As a rule, only in the process of mediation can the parties come to a truly mutually beneficial “agreement” or “memorandum of understanding” that meets interests and needs.
The agreement reached during the mediation between the disputing parties is the basis of a mutually acceptable way to resolve their conflict, and in order to be implemented in different states, this agreement must meet the legal requirements in those states. Formal legalization of a mediation agreement in accordance with the laws of both (all) involved legal systems is crucial in cross-border disputes.
To begin with, the agreement reached during the mediation process must be presented to the parties in writing and signed by both parties. Given the content of the issues set out in the agreement and the applicable law, the agreement should be a legally correct contract between the parties, which will enter into force from the moment of its conclusion.
The agreement reached in the mediation process should be as realistic and detailed as possible with respect to all rights and obligations presented in it. This is important not only for the actual implementation of the agreements reached, but also for giving them official legal status.
Judicial authorities should support the implementation of the mediation agreement, providing assistance to the parties regarding the legal execution of the agreement and its implementation in various international legal systems.
Prior to the practical and effective implementation of the mediation agreement, it should be recognized as legally valid in the relevant jurisdictions. States should assess the need for additional regulations or legislation aimed at the legal execution of agreements reached during the mediation process.
IQ Decision UK provides professional mediation services conducted by Centre for Effective Dispute Resolution (CEDR) panel mediators. Contact us to constructively tackle challenging disputes through cooperation and dialogue, facilitate understanding, overcome legal impasses, and craft sound and sustainable mediation agreements based on your practical current goals and far-reaching objectives.