Mediation – new area of specialization for BZSE

Published on: Nov 24, 2014
Now that Rik Bergman has completed his training at the Lime Tree Institute for Mediation in The Netherlands, BZSE is able to offer the services of a fully certified mediator to our clients. Mediation is a method of alternative dispute resolution method which has proven its reliability.

Mediation is a well proven 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 of them. It promotes reconciliation between the parties, enabling them to maintain or restore a harmonious relationship while preserving their bond of trust.

More efficient
Unlike a hearing before a court, the parties do not have to go through a lengthy judicial process, since they set the pace for the meetings and the mediation schedule themselves together with the mediator.

As a result, mediation can take as little as a few weeks, or even a few days.

Mediation is generally more cost efficient compared to litigation, particularly since the parties save the costs of preparing and filing legal documents and serving them to 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 will get to know the facts of the dispute, how the meetings are conducted, or the outcome of the mediation. This is contrary to litigation, where a judgment is always a public document. Confidentiality can be a definite advantage, particularly in business settings.

Ongoing relationship between the parties
In mediation, the focus is not on determining which party is right, but rather on finding a solution that is acceptable to both parties.

The mediator is responsible for establishing a positive atmosphere that will encourage a fruitful and constructive dialogue.

Whereas in judicial proceedings parties often take on 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 of both parties into consideration and are designed to be mutually acceptable.

The parties at the center of the mediation process

The 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 mediation

Mediation can be initiated:
- On request by the parties;
- Through the execution of a mediation clause in a contract;
- During a judicial proceeding, with the agreement of both 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 both parties
In this instance parties start mediation on the recommendation of the Court if they are already involved in a court proceeding.

Mediation agreement

Once 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 roadmap for the process.

Successful mediation is often concluded by 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.

Suitable Cases for Mediation

Nearly 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 suitable for mediation include:

Collective bargaining between labor unions and management, Workplace disputes between business partners, co-workers, or supervisor and employee, Contract disputes, Shareholders disputes, Real estate disputes, Construction disputes.