Mediation is increasingly being used to settle disputes. There may be several reasons for this choice. First of all, it is generally faster than court proceedings. It also generally offers better opportunities to maintain good mutual relationships. Moreover, if the mediation is successful, a settlement is reached that is acceptable to all parties involved, something that is almost always impossible in court proceedings.
What is mediation?
In mediation, the parties enter into discussions with each other under the guidance of a professional counselor, usually referred to as a mediator, to explore whether they can still settle the dispute between them in mutual consultation.
The aim of mediation is that the parties jointly reach a solution on their own. The mediator guides the conversation and the process. However, he does not make choices or decisions.
The aim is therefore not to reach the most perfect legal solution. The inset is that the parties reach a settlement arrangement they can both agree to and that meets their interests in a way that is acceptable to them.
What are the “conditions” of mediation?
In principle, the parties can – in mutual consultation – give form and substance to the mediation themselves. To a certain extent it is also wise to do so. For example, it is important to agree on who will be present at the mediation. Will the parties be assisted by a lawyer, or will they engage in “private conversation” with each other?
To increase the chances of success, however, it is wise if some basic conditions are met. The most important of these are voluntariness and confidentiality.
Voluntariness
The goal of mediation is to reach a settlement agreement. Since no one can be forced to agree to anything, this can only be done on a voluntary basis. Therefore, both parties must be open to the mediation. If this is not the case, the mediation has no chance and therefore there is no point in talking (further).
Not all parties are (completely) honest about their intentions regarding the mediation. It happens that parties only participate for the sake of perception. In many cases it is actually appreciated by judges when parties have made an attempt to settle the issue by mutual agreement. In fact, the rejection of a mediation proposal can (negatively) influence the legal position – especially in employment law. It is wise to keep this in mind, although at the same time one should not immediately assume the negative.
Confidentiality
In addition, it is important that the parties can express everything during the mediation, without having to fear that it may be used against them (afterwards). If the parties do not feel free, there is a great risk that the dispute will not be fully resolved. In that case, there is a risk that the discussions will revive afterwards. In view of this, it is wise to agree on strict confidentiality.
Questions?
Is mediation perhaps an option for you to explore whether you can resolve a dispute? Or have you been invited to a mediation session and would you like assistance in that process (either during the meetings or in the background)? We would be happy to discuss what we could do for you.
