General information about mediation and the mediator
Generally, mediation is a negotiation between two or more parties, who receive professional support from a third party, a mediator. It can refer to a contract negotiation or a conflict or dispute, whether it is in a commercial or private context. It can also refer to purely internal matters, such as a conflict in the workplace.
Conflicts and disputes arise in all contexts. They are part of our basic human living conditions. The question is not whether they arise, but when. There are different ways to handle them. One way is to let other people decide over the parties, e.g. courts or arbitral tribunals. Another way is for the parties themselves to decide the solution, which is a starting point for mediation. Another starting point for mediation is that the parties themselves – and no one else – know best what meets their respective interests and needs.
Mediation thus aims to reach an agreement, which means, among other things, that the focus is on the future. However, historical, less good, experiences can inspire the parties to find solutions for the future. Mediation is voluntary and takes place under secrecy. During a mediation, there can be both individual and joint meetings between the parties and the mediator, depending on what most favors the parties’ path towards a solution.
Through mediation, the parties can save a lot of time and money and, at best, maintain their relationships, if compared to court or arbitration proceedings. In general, it can be said that the earlier in a conflict or dispute mediation is used, the greater the possibility of succeeding in agreeing. An appropriate opportunity is after the parties – and later their respective representatives – have tried, but have not reached a solution, but before one of the parties chooses to go to court or arbitration. Once the parties have ended up in court, the costs usually increase dramatically and so does the level of conflict.
Normally, the actual mediation meetings take place in one day or for a very few days. This can be compared to court or arbitration proceedings, which often take many months (sometimes several years). The main focus of mediation is the interests and needs of the parties, not the legal positions. When the mediation is terminated by an agreement, it is possible to have it enforceable, if the parties so wish.
A mediator is impartial (in relation to the parties) and neutral (in relation to the issues). This means, among other things, that the mediator treats the parties equally and decides nothing in substance. In addition, he or she does not provide the parties with any legal advice. The mediator’s task is instead to guide them to a consensual solution, i.e. the mediator handles the procedure itself. It takes place at joint meetings, where both parties and the mediator participate, and in individual meetings between the mediator and each party. None of what is said in private to the mediator is passed on to the other party, unless the party and the mediator agree. The mediator occasionally acts as the “devil’s advocate” by testing the validity of the party’s arguments in individual meetings. This is a way for the mediator to bring the parties closer together and is not done to persuade the parties to change their attitude. This is done instead of helping them consider their strategies for reaching a solution.
It is effective for the resolution of the matter that the parties can speak completely freely with the mediator, in a way that can be difficult for one party to do directly to the other party.