A new area of activity of BZSE.
Mediation is a well proven and tested alternative to a traditional court case. Both parties play an equal role, and together with the mediator look for a solution that is acceptable for both parties. It promotes reconciliation between the parties, enabling them to maintain or restore a harmonious relationship and preserve their bond of trust.
Unlike a hearing before a court, the parties do not have to deal with the inevitable delays of a judicial process, since they set the pace for the meetings and the mediation schedule together with the mediator.
As a result, mediation can take as little as a few weeks, even up to a few days.
Mediation is generally more cost efficientcompared to litigation, particularly since the parties save the costs of preparing and filing legal documents and serving them on the other party, as well as other costs connected with judicial proceedings.
Mediation is confidential. This means that, apart from the parties involved and the mediator, no one else knows the facts of the dispute, how the meetings are conducted, and the outcome of the mediation. This is contrary to litigation, where a judgment is always a public document. Confidentiality can bea definite advantage, particularly in business settings.
Ongoing relationship between the parties
In mediation, the focus is not on determining which party is in the right, but rather on finding a solution that is acceptable to both parties.
The mediator is responsible for establishing a positive climate that will encourage fruitful and constructive dialogue.
Whereas in judicial proceedings parties often take an entrenched positions and attempt to convince the judge that they are completely in the right, mediation is a flexible process which tends to focus on the points on which the parties are in agreement and, above all, their respective needs.
In mediation, the parties do not have to convince the mediator that their respective positions are right. The solutions explored during the mediation process take the opinions ofboth parties into consideration and are designed to be mutually acceptable to both parties.
The parties at the center of the mediation processThe mediator focuses constantly on balance and equality, and must make sure that the parties understand the consequences of the agreements reached and the rights each party retains.
Initiating mediationMediation can be initiated:
- on application by the parties;
- through the execution of a mediation clause in a contract;
- during a judicial proceeding, with the agreement of the parties.
Application by the parties
The two parties involved in a conflict can decide to submit their dispute to mediation; at this point they can either choose a mediator together, or contact a specialized organization to locate a mediator.
Execution of a mediation clause in a contract
The best way to provide for mediation is to include a mediation clause when the two parties enter into a contract.
Applying a mediation clause that is already contained in a contract is a popular way to initiate mediation. This type of clause enables the parties to submit any dispute arising out of the contract to mediation. In this type of clause, the parties agree to submit their disputes to mediation (first) rather than to a court.
During a judicial proceeding, with the agreement of the parties
The parties start mediation on the recommendation of the Judge if they are already involved in a court proceeding.
Mediation agreementOnce the mediator has been chosen, the parties sign a mediation agreement. This agreement generally includes a confidentiality clause and sets the fees for the mediator’s services. It also states the objective of the mediation and provides a framework for the process.
Successful mediation often ends with the signing of an agreement. This may take place at the end of the mediation process, or after the parties have had the agreement examined by a legal advisor or any other party of their choosing.
Appropriate Cases for MediationNearly any type of case can be mediated, but the best cases are those in which the parties are unlikely to reach a settlement agreement on their own. The types of cases appropriate for mediation include:
Collective bargaining between labor unions and management is one of the most familiar models of mediation. Workplace disputes between business partners, co-workers, or supervisor and employee can be mediated to correct particular problems and continue productive relationships. Contract disagreements, shareholders disputes, real estate disputes, construction conflicts, and cases between landlord and tenant are also common.
For more information, contact Rik Bergman or Berty Veen-Brom.