Understanding Mediation Process
Mediation is a flexible and confidential process where a neutral mediator assists parties in negotiating agreements. It can occur at any stage of dispute resolution, ensuring consensual outcomes through open dialogue and exploration of key issues.
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Presentation Transcript
MEDIATION and other forms of ADR
MEDIATION A flexible process conducted confidentailly in which a neutral person (the mediator) actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution
MEDIATION Can take place at any time during the course of the dispute resolution process before any court proceedings are issued or during those court proceedings; it can even take place after the judgment, e.g. when the appeal is pending
MEDIATION Agreement reached at the mediation must be consensual it cannot be imposed by mediator The basic idea of mediation is that the mediator assists parties on their way to idenftify the real areas of disagreement and points that are most important to the parties and thus enable them to reach mutual agreement
MEDIATION Mediation interchangeable terms and concilliation are usually
MEDIATION There is no fixed format for the conduct of mediation
MEDIATION Appointment of mediator Pre-mediation meeting Opening phase open joint meeting, opening statements Exploration phase - open joint meeting when parties explore issues and exchange information and private sessions of mediator with each of the parties (closed meetings) during which parties and mediator explore strategies for settlement Bargaining phase parties make and consider offers and concessions either during open joint meeting or closed meetings with mediator acting as shuttle diplomat Settlement phase during which the terms of the agreement are being confirmed and the final settlement is being drafted
Once the agreement is reached it must be recorded in writing and be signed by all parties to the mediation proceedings
EUROPEAN FRAMEWORK - MEDIATION Directive 2008/52/EC of the European Parliament and the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (Mediation Directive), OJ L 136/3, 24/05/2008 A European Code of Conduct for Mediators has been developed by a group of stakeholders with the assistance of the European Commission and was launched at a conference in Brussels on 2 July 2004 (soft law)
EUROPEAN FRAMEWORK CONSUMER ADR Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) 2006/2004 and Directive 2009/22/EC, OJ L 165/63, 18/06/2013 Regulation (EU) 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC 2006/2004) and Directive 2009/22/EC, OJ L 165/1, 18/06/2013
ADVANTAGES OF MEDIATION cheapness & speed flexibility preserving a business relationship commercial reality
DISADVANTAGES OF MEDIATION the facts may not be fully disclosed one party may abuse the other to get certain information and then sue may not suitable in cases where a ruling on a point of law is needed
MED-ARB Hybrid process which provides that if no settlement can be agreed at the mediation the parties may invite the mediator to act as arbitrator to determine the dispute and make an award that will be binding or non-binding as agreed by the parties
ARB-MED A simplified arbitration takes place first, followed by mediation. The arbitration award is sealed and not revealed to the parties unless they are unable to reach settlement at the mediation that will follow the arbitration. Usually the same person acts as arbitrator and mediator. The uncertainty generated by the unknown award often forces the parties to reach an agreement at the mediation.
MINI-TRIAL OR STRUCTURED SETTLEMENT PROCEDURE Parties appoint a neutral who will sit as a chairman of a tribunal composed of himself and a senior representative of each of the parties. These representatives may not be immediately connected with the dispute and should have authority to reach such compromise as they see fit. They will hear and/or read the case of the two parties, after which they will negotiate with each other with the help of independent arbiter.
EXPERT APPRAISAL The parties can referr all or part of their dispute to an expert in the disputed field for his opinion. Expert s opinion is not binding on the parties but could influence their approach to subsequent negotiations
JUDICIAL APPRAISAL The Centre for Effective Dispute Resolution (CEDR) has a scheme whereby former judges and senior counsel are available to give a quick preliminary view on the legal position, having heard representations from both parties It is a matter for agreement between the parties as to whether this opinion is to be binding on them or not
EXPERT DETERMINATION Expert determination is a halfway house between arbitration and other ADR methods. As in arbitration parties select an expert to decide the case for them. They agree to accept his decision, and if one fails to do so, the other can sue for breach of contract. The expert s decision cannot be enforced as a court order. The expert does not have the powers of an arbitrator and he can be sued innegligence by a party who thinks the decision was wrong.
FINAL OFFER ARBITRATION The parties can instruct their chosen neutral that they will both make an offer of the terms on which they will settle, and that he must choose one of those two offers and no other solution. Neither party can afford to make unrealistic offer, because that will mean that the neutral will choose the opponent s offer.
EARLY NEUTRAL EVALUATION Parties choose neutral who makes preliminary assessment of the facts at an early stage in the dispute. Normally the parties submit written case summaries and supporting documents. The evaluator then makes a recommendation. This helps the parties to negotiate the settlement (or move to another ADR method), avoiding the expense of litigation.
OMBUDSMAN a designated within certain organisation neutral or impartial dispute resolution practitioner whose major function is to provide confidential and informal assistance to managers and employees, clients and/or a corporation, university organization, governmental agency or other entity. As an independent and organizational ombudsmanideally should have no other role or duties. This is in order to maintain independence and neutrality, and to prevent real or perceived conflicts of interest. independent, impartial, other stakeholders non-governmental of neutral employee, the Insurance Ombudsman Banking Ombudsman
