What is mediation?
“Mediation is a structured process, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a State.”
Art. 3 of the 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.
Mediation may be conventional or judicial.
- — Conventional Mediation: Mediation is freely and voluntarily chosen by the parties themselves who decide upon a mediator.
- — Judicial Mediation: Mediation is ordered by a judge in a dispute submitted to him.
Mediation is applicable to disputes in many areas, such as commercial, workplace, community and family or diplomatic matters.
The basic principles of mediation are:
- – Neutrality,
- – Impartiality,
- – Independence,
- – Confidentiality.
The mediator must act impartially and neutrally. He must perform his duties with complete independence.
He is committed to the confidentiality of exchanges and demands the same from the parties.
Since the parties participation is generally voluntary, the mediator facilitates rather than directs the proceedings.
The mediator has an obligation of means rather than an obligation of results.
In France, the mediator activity is not subject to any requirement of membership to or qualification from any specific professional association or other body.
Nevertheless certain professional groups exist that actively promote mediation generally and recommend best practice. Where appropriate, they also offer paid training.
The benefits of mediation include:
- – Cost and Speed: Mediation is not free, but the mediation process takes much less time than a judicial or arbitral proceedings. If a judicial litigation (or arbitration) is generally decided over several years. Mediation takes place over several weeks.
- – Confidentiality: While court hearings are public, mediation remains strictly confidential. And the mediator will not testify for or against either party in the event of continued litigation.
- – Equity and acceptability of solutions by the parties: In a trial, the parties obtain a decision from the judge (or arbitrator) who decides upon the case, but since Justice is blind, the decision may not necessarily be fair! Thereafter, voluntary compliance by the parties with the judge’s decision may be affected. Mediation is more likely to produce a mutually acceptable result and therefore voluntarily executed by the parties.
Mediation vs. Arbitration:
Arbitration is also a way to resolve disputes, but it is closer to a judicial court proceeding. The difference is mainly that arbitrators are not judges of state courts. Arbitration follows a formal procedure with respect to submission of claims, objections and evidence by the parties and the arbitral award decides on the case in a definitive manner. Also the arbitral award is often directly enforceable. Arbitration is confidential and generally faster and less expensive than court proceedings.