Mediation is a structured yet flexible process in which a neutral, unbiased party (mediator) helps the conflicting parties to negotiate in the best possible way and find a solution that will satisfy the interests of each of these parties. At the same time, the mediator does not have the authority to make any decisions; his or her task is to build a high-quality and professional negotiation process between the conflict partners in order to find new solutions.
Unfortunately, conflicts are an integral part of human life. That is why mediation has been developing for centuries as a way to peacefully resolve and settle conflicts between individuals and communities, different social groups. In modern African, Chinese, Japanese, and Islamic societies, unlike Western culture, conciliatory out-of-court dispute resolution methods are primary, while courts are considered an alternative.
As an alternative dispute resolution process, mediation has been developing in Ukraine for about 20 years. The National Association of Mediators of Ukraine notes that mediation is useful for resolving many conflicts, especially those that are sensitive to the preservation of relationships and the risks of reputational losses (family, commercial, labor, etc.). Mediation can be applied regardless of whether the case is in court (pre-trial, post-trial, out-of-court mediation and mediation during the trial of a dispute).
Currently, mediation as an effective method of alternative dispute resolution is widely used in the business environment, in family disputes, in the social sphere, in the IP and IT spheres, and in community relations. For example, the use of mediation in family conflicts reduces the number of court disputes by up to 60%.
Mediation teaches you to build relationships and find solutions based on the interests, values, needs, and feelings of a person, rather than relying solely on their emotional reactions, behavior, and principled positions.
Requirements for a mediator as a party to a lawsuit
The mechanism of mediation in international practice is based on the principles of confidentiality, impartiality of the mediator, legal capacity of the parties and voluntariness. The following requirements are imposed on a mediator as a party to a court dispute:
- The mediator has no right to make the final decision in the dispute.
- If the two parties fail to reach an agreement, the mediator must terminate his/her activities.
- The mediator’s identity may be changed during the dispute, for example, if his/her predecessor was unsuccessful.
- Once a person has ceased to work on a case as a mediator, he or she may not continue to participate in the dispute in any other capacity.
Only if these criteria are fully met can we speak of a mediator’s full impartiality and objectivity to clients and his or her effective work.
Advantages of mediation
If we talk about the advantages of mediation over, for example, judicial settlement of a dispute, it is, first of all, confidentiality; secondly, in the process of mediation, you can take into account many factual and legal aspects and not be limited to the subject of the dispute and the subject of proof (as is the case in court); Thirdly, if the goal is to preserve relationships (long-term business, partnership, personal, family, labor, human relationships in general), mediation is the only effective way, because after the trial, the parties usually become even more enemies than they were before, and business ties end and partnerships disappear.
In business mediation, you can achieve cost-effective results; save time – due to the flexibility of the process and the free allocation of time, it leads to faster decision-making; save money and avoid the costs necessary to overcome the resistance of the other party, which will lead to increased productivity; you will avoid reputational losses and improve the image of the company, as you will avoid the disclosure and publicity of the conflict, information about you and your company in court registers, registers of debtors, the media, etc.
The mediator, who is responsible for conducting and managing the mediation negotiation process, skillfully uses the professional tools and knowledge he or she knows to create the most productive space of understanding for the parties to make effective decisions of their own, aimed at satisfying their deepest needs and interests. All decisions made by the conflict partners in the negotiation process are their own and are checked by the mediator only by the criterion of their feasibility and environmental friendliness.
Disadvantages of mediation
- Formalization;
- dependence on procedural legislation;
- The fact that the mediator is often a public official;
- the possibility of a low level of objectivity in disputes with the authorities (based on the previous point);
- failure to take into account the psychological aspect of mediation.
This view is objective and clearly shows the points that should be taken into account in the legislative consolidation of mediation in order to increase its effectiveness. Today, the introduction of mediation requires a proper legislative basis, which is possible only after the draft law on mediation is adopted and the shortcomings and risks of this phenomenon are thoroughly investigated.
One of the main problems with the introduction of mediation is that in most cases, the parties to a dispute learn about an alternative solution to the problem only after they have filed a case in court. Settlement through mediation is possible only at the early stages of a dispute. Mediation does not automatically suspend the statute of limitations, as is the case in court proceedings, so before resolving the issue, the mediator must check whether the claim is within the statute of limitations.
The mediation process
Mediation, as a process, has its own structure and principles, which distinguishes it from the process of negotiation or facilitation (organization of the process of collective problem solving in a group), as other forms of mediation. Thus, the advantages of the mediation process are, first and foremost, its confidentiality: all information that the mediator receives in the course of negotiations from both parties and from each party separately is confidential and not subject to disclosure. In addition, the parties may decide that even their participation in this procedure and its application to resolve a dispute between them is confidential. The parties, by their own agreement, can decide what information may be subject to disclosure (both to each other and to the public in general) and what remains behind the doors of the negotiation room. Such security is achieved by signing a Confidentiality Agreement or by verbal agreement of the participants.
In addition, all parties to the process voluntarily participate in the mediation process and may decide to withdraw from the process at any stage. The mediator also has this right.
An important component of the process is that the mediator is a neutral party who does not have the competence to make decisions or generate options for various solutions; the mediator, as a mediator, does not express his or her preferences, is not an arbitrator or judge, therefore, during the process, he/she does not make any value judgments about any of the parties and their positions; his/her task is to move between the parties, to be an interpreter, transmitter and catalyst that facilitates the effective search for the best solutions, taking into account and revealing the true interests of each party.
Each of us has the right to choose our own way of protecting our own interests. Mediation is one of them. This is an alternative tool that is important to get acquainted with and at least once try to apply in the area of your life or professional activity that is related to people and disputes and conflicts between them. And even if we are talking about a dispute between businesses, we need to understand that the interests of any company are backed by the interests of people – managers, leaders, business owners. This is why mediation is also being developed in the political sphere, in resolving conflicts and misunderstandings between the authorities and communities, and even in the field of consumer protection, mediation is gaining momentum.
conflict / copyright / dispute / intellectual property / mediation
