The parties to the mediation may or may not be represented by a lawyer. If a lawyer is present, the parties may be encouraged to cooperate with mediators and consult lawyers on legal matters. In general, the minutes are drawn up with the lawyers before the meeting. The participation in mediation of the party with the power to reach an agreement is essential. When arranging personal injury or workers` compensation arrangements, insurance agents must inform the mediator that their supervisor or another person with full place of business can be reached by telephone. When the parties relate to their interests and engage in dialogue, mediation often results in an agreement that creates more value than if the underlying dispute had not occurred. In court proceedings or arbitrations, the outcome of a case is determined by the facts of the dispute and applicable law. In mediation, the parties may also be guided by their business interests. Thus, the parties are free to choose an outcome that is based on both the future of their business relationship and their previous behavior. Even if it seems that you have done everything correctly, sometimes disputes arise. Settling them in court is usually time-consuming, chaotic and costly.
Alternative dispute resolution (ADR), such as mediation or arbitration, is often seen as an easier way. In fact, they can be included in agreements as a preferred method of dispute settlement. Whether you are considering signing a contract with such an ADR clause, or you are facing a dispute and looking for alternatives to go to court, here is an overview of ADR methods to help you move forward. Impartial, neutral, balanced and secure – The mediator supports each mediating party and cannot favour the interests of one party over another, nor should he or she prefer a particular outcome in mediation. The role of the mediator is to ensure that the parties enter into agreements voluntarily and knowingly and not as a result of coercion or intimidation. This is the longest period during which the mediator is expected to speak, and during this opening, parties are encouraged to request an agreement and full disclosure from the mediator in good faith. All conversations and documents presented during the mediation session are confidential, unless otherwise specified in court. However, the parties usually actively participate in mediations as soon as they begin. In a mediation procedure, a neutral mediator, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. Each regulation is set out in a binding contract.
Generation of options and alternatives: The disputing parties will identify areas of resolution together or in separate meetings (caucuses) with the mediator. The mediator can summarize the results of private meetings with each party and propose options. A realistic assessment of the strengths and weaknesses of each party`s position will be the objective of this phase. Negotiations and decision-making by the parties continue unless the mediator declares an impasse and terminates the mediation or continues the mediation at a later session. A party to mediation cannot be forced to accept an outcome they do not like. Unlike an arbitrator or judge, the mediator is not a decision-maker. Rather, the role of the mediator is to help the parties resolve the dispute. There are also disadvantages to mediation. For example, if the parties to the dispute are not willing to participate in the mediation process, mediation will not work.
Indeed, mediation requires voluntary participation between the consenting parties in order to find an amicable solution. In addition, mediation may fail even after considerable efforts on the part of the parties to the dispute. This means that the resolution of the issue may have to be postponed until another form of alternative dispute resolution is applied or until the parties hear their case in court. Because mediators are individuals, they have different expertise in conflict resolution and different backgrounds and worldviews that could influence the way they conduct mediation. The parties may be satisfied with one mediator, but may not be satisfied with another mediator in subsequent mediations. Even if an agreement is reached, the mediation itself is usually not binding. The parties may subsequently be dissatisfied with the agreement reached during the mediation and choose to pursue the dispute through other ADR methods or through litigation. For this reason, the parties often enter into a legally binding contract that contains the terms of the mediation resolution immediately after the successful mediation is concluded. Therefore, the terms of mediation may become binding if reduced to such a contract, and some parties may find this detrimental to their interests. Of course, any party that signs such an agreement would do so voluntarily. In some cases, where no legal counsel is involved, the parties may not fully understand the effects of the agreement they are signing.
Such ethical situations are not only part of dispute resolution in commercial law scenarios, but also occur in everyday life. Take the case of a parent who comes home from work when he receives a call from the babysitter telling him that his child`s forehead is warm and she complains that she is not feeling well. Sitting in a traffic jam, the parent remembers that he does not know where the digital thermometer is, so he decides to stop and buy one. The parking space of the store is extremely busy, so the parent decides to park in a place accessible to people with disabilities, although he has no mobility problems. Such situations have been approached by philosophers like Immanuel Kant, who spoke of the categorical imperative that he defined as “Act only according to that maxim with which you simultaneously want it to become a universal law.” In other words, one`s own action should be seen in the light of what would happen if everyone participated in the same action. While this may not seem like a detrimental violation if everyone did, it would cause real inconvenience and possible suffering for the people with reduced mobility for whom these rooms were intended. An ethical and ethical point of view would state that it is always wrong to park in the space accessible to people with disabilities, regardless of the situation. In real life, it is very difficult to adopt a 100% ethical point of view for the settlement of disputes.
Often, the reason why the dispute arose in the first place is a certain ambiguity inherent in the situation. In these cases, mediators must use their best judgment to help opposing parties see each other`s views and lead them to an amicable solution. The cost of mediation is lower than the average cost in time and money for litigation in a legal dispute. The mediator`s hourly rate is usually lower than a lawyer`s hourly rate. Parties can often schedule mediation in the weeks following a mediation decision or court order for mediation. A quick and efficient movement of workers` compensation cases, contested divorces with complex ownership and custody issues, and commercial contract disputes can improve your company`s financial situation. The resulting benefits are customer/customer satisfaction, an increase in customer referrals and more time for complex cases. Mediation is a method of ADR in which the parties retain the power to decide the matter themselves without delegating that power to an external decision-maker. However, mediation relies on neutral mediators who facilitate the mediation process to help the parties reach an acceptable and voluntary agreement.