Mediation is one of the alternative dispute resolution (ADR) methods by which the opposing parties, through a mutually agreed procedure and in a neutral venue, in the presence and with the necessary assistance of a third party of their choice, the mediator, reach a mutually acceptable resolution of their dispute.
Mediation is a method of dispute resolution in which a properly trained mediator, neutral to both parties, helps them to negotiate and reach a mutually acceptable solution. It is usually chosen in cases where the amicable settlement between the two parties has been interrupted, has failed due to lack of experience in negotiation techniques or where the pace of progress of the amicable settlement is too slow, usually before going to court (but even during the dispute before the courts). In mediation, the mediator plays a key role, helping the parties involved to find the solution that is most in their interests. Precisely because the approach here is also consensual, the likelihood that the parties will be able to maintain their relationship with each other after the dispute has been resolved is high.
The role of the mediator is to facilitate communication and negotiations between the parties involved and not to take a position in favour of one side or the other. He is, however, entitled to question both parties about their positions on the dispute in question in order to ascertain their objectivity in assessing the strengths and weaknesses of both their own position and that of the other party. The mediator should also direct the parties involved to concentrate on seeking a creative resolution of the dispute by focusing their attention on the future and discourage them from insisting on citing past events in an attempt to establish their legal rights.
The mediator does not necessarily need to be experienced in the subject matter and scope of the dispute. He or she should, however, have knowledge of negotiation techniques and considerable experience in their application.
Mediation is a flexible process that does not involve perfectly defined and standardised steps. Before it starts, it is advisable to sign a mediation agreement between the two parties which will regulate the procedure to be followed and determine who will be the mediator. In general, the actions to be taken are as follows:
Preparation: each party prepares a short essay in which it presents its attitude towards difference. This report, together with the necessary supporting documents, shall be sent to the mediator and to the other party at least one week before the mediation starts.
Opening meeting: This is attended by the mediator and the (usually two) parties involved. During this meeting, the parties briefly present their position on the dispute and its resolution.
Individual meetings of the mediator with each party separately: Individual meetings are confidential and, depending on their progress, additional meetings with representatives from both parties may be required.
Reaching an agreement: When the two parties reach a mutually acceptable solution to the dispute, the terms of the agreement are recorded and signed by both parties.
Mediation usually goes through a stage at which the likelihood of the two parties reaching an agreement seems to be very low. However, because practice has shown that things are then turned around and mediation usually leads to a result, the parties involved should not be disappointed from the outset but should stick to their objective.