What is special about mediation, is that, unlike in conflict resolution through court or arbitration, this method leaves the decision in the hand of the disputants. The solution is not being forced upon by a third-party decider, but is elaborated during the process, under the guidance of a mediator, by the parties themselves.
As process manager the mediator is structuring the talks, steering them in the right direction and keeping them on the rails. He monitors efficiency and equivalence in the negotiation, and facilitates a constructive communication.
Confidentiality is as such a real cornerstone during mediation: the paraphrase “What happens in mediation, stays in mediation”, is essential: all conversations are confidential, and none of the documents produced or statements made during mediation can – in case the mediation is not successfully terminated – be used in court.
And to get - in an accompanied way - to a solution yourselves that is time- and cost-efficient, without blowing up bridges.
It’s all but obvious to stay on speaking terms in – let alone highly escalated – conflict situations in order to get to a mutual agreement. On the other hand, the judicial way is often very long, and the final cost can be very high. Besides, there is no clear view whatsoever up front: either w/r duration, cost, or outcome.
All this provides sufficient reason on itself to avoid a long, uncertain way through Court. Especially since it would only bring further polarization, deny the human aspects, and might cause unrepairable damage.
Nonetheless such circumstances, and in order to get to solutions themselves, parties can be assisted by a mediator. He will help them, and accompany them throughout an efficient and equivalent negotiation. The objective than lies in the achievement of a solution acceptable to all parties, and to prevent, or even turnaround, further embitterment.
Hence: not a third party imposing his it’s decision, but parties that negotiate mutually towards a solution, accompanied by a trained and certified mediator.
Statistics show that mediation is at least 10 times faster than a judicial procedure.
The same statistics point out that the “average” lead-time, for an “average” dispute, will take about 4 sessions of 3 hours to half a day each.
But those are of course averages: some mediations are successfully runded up in one sole session of an hour and a half. A thorough preparation, preliminary exchange of information, analysis, as well as possible – transparently arranged – individual intakes, can play an favorable role in this. Equally, complex mediations can take longer than average. But whatever the case, the contrast with the way through court remains equally important: an average of 525 days is needed to get a judgment.
And this agreement proves - almost without any exception - to be one about which parties in the long run remain largely satisfied.
This also appears to be the reason why entrepreneurs and business leaders, when asked, point out that the negotiation and mediation have by far their preference above judicial proceedings. Nevertheless…it turns out that in reality a lot of them are still “wired to sue”.
It appears that when it comes to conflict resolution, “we like what we don’t do”, and “do what we don’t like”…
Disputants come to a solution themselves. The mediator does not pass judgment but assists and structures.
Parties must be willing to talk, and to commit jointly to mediation; knowing that each party, at whatever moment can end the mediation.
For each party in a dispute, it is of major importance to be sufficiently informed in order to decide. Open and transparent exchange on this information is essential.
Where needed, parties can call upon assistance by third parties (accountants, experts, attorneys…) as well as on the mediator’s competence.
The strict confidentiality of the proceedings provides that all talks and negotiations, as well as documents produced during the mediation by parties or mediator (unless these would already have been made public beforehand), are strictly confidential. They cannot be used in any later judicial or other proceedings, and are therefore not admitted as evidence.
The mediator works – evenly hard and interested – for all parties, and watches over their interests.
Whilst offering a structure and managing the rules of play, he attempts to steer towards a constructive conversation, and accompanies the negotiations towards a solution.
In doing so, his position is one of “multiple partiality”: each party is entitled to equivalent participation, so that all interests can be taken into account.
After parties have been informed as to the concept and the rules of play of mediation, and have agreed to undertake an attempt to solve the conflict via this way, a mediation protocol is being signed.
Subsequently, an agenda is fixed with all of the concrete points that will have to be treated. Those points are listed separately, in order to be able to treat them independently.
Before looking for solutions, information is being exchanged: each position is explored in depth and discussed, so that parties can get a clear view as to each other’s interests, concerns and wishes.
Next comes the brainstorm phase, during which – with maximum openness and without judgment – all possible solutions that might address the previously discussed interests are listed: in general, this is a very important phase in which new solutions, and combinations of solutions that parties did not think of beforehand, originate.
Once this inventory of all possible solutions being done, they are – one at the time – being assessed in perspective to the highlighted interests, concerns and wishes, with the aim of debouching in a balanced, and optimally matching solution.
Finally, the agreements made are being put on paper in a mediation agreement, that– if desired -
can be sealed by a court, thus obtaining enforceability.
The latter can be useful, although the odds that the parties will freely live up to the agreement are very high, since they have been at the origin of the draft.
One of the benefits of mediation is that the cost is substantially lower than in an judicial proceeding. The statistics to which we referred earlier show a factor of “at least 1 to 3”.
Since according to law, the mediator’s fees are to be carried in equal parts by the parties, this also makes a difference in comparison with court, where each party has to be represented by it’s attorney.
The way in which fees and expenses are being charged, is clearly communicated and agreed upon in advance, and is integrrated into the mediation protocol.