Mediation

History of Mediation

The activity of mediation appeared in very ancient times. Historians located early cases in Phoenician commerce. The practice developed in Ancient Greece (which knew the non-marital mediator as a “proxenetas”), then in Roman civilization, starting from Justinian’s Digest of 530 – 533 CE.

Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of traditional wise men or tribal chief. Members of peaceful communities frequently brought disputes before local leaders or wise men to resolve local conflicts. This peaceful method of resolving conflicts was particularly prevalent in communities of Confucians and Buddhists.

The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.

Mediation today

Mediation is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties, with a help of mediator. Mediation is a voluntary process, designed not to be a threat to the parties in the dispute, but to respect their requirements and integrity.

Unlike judicial proceedings, mediation is considerably shorter, more flexible and more cost-effective, where parties actively participate and come to a satisfactory solution by agreement. While the judicial process takes into account only legal positions of the parties, in the mediation procedure, the interests of the parties that are taken into account may be of religious, cultural or other type.

Mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential, possibly enforced by law.

The Mediator

The mediator is a specially trained person (third, neutral, independent and impartial party) that stands outside and above the conflict, and that mediates between two sides to resolve their contentious relations in order to achieve solution (an agreement) in which everyone would feel like a winner.

Mediator is not a judge, not an arbitrator and not have the right to advise parties. Mediator can not impose a solution nor make a decision. Mediator’s role is to facilitate the procedure of mediation and to assist the parties to understand their interests by the unmet needs (which caused the conflict), and that the parties jointly find mutual agreement, a solution acceptable to both sides.

Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement.

In accordance with legislation the Republic of Serbia, the mediator has to be registered in the registry of mediators of the Ministry of Justice of the Republic of Serbia.

The Application of Mediation

Mediation may be applied at any stage of resolving the dispute in the area of banking services, insurance, leasing, Legal Ownership Relations of natural or legal persons, economic, trade, labor, consumer, administrative and criminal matters (damages). Mediation is possible prior to addressing of the opposing parties to the court, as well as after the commencement of proceedings before a court, but only if both parties propose that, because the mediation process is process based on principles of voluntariness, equality and equity.

If the exclusive jurisdiction of the court or other body of authority is prescribed by law, mediation shall not apply.

Mediation process

Unless the parties have agreed otherwise, the mediation process begins by accepting the proposals to institute proceedings of both sides in dispute.

Mediation process is urgent and can last, according to law, up to 60 days, but in practice no longer than a few days or weeks. Duration of mediation, due to its time limitations, shortens the usually lengthy procedures (and with uncertain outcomes) of solving disputes  in a court of law.

In the process of mediation, each party presents its positions and opinions, and in the process, with the help of a mediator, examines their positions and interests in order to achieve the most favorable solution that is acceptable to all parties. The value of the mediation is in the promotion of the idea of peaceful, non-violent resolution of disputes, tolerance and mutual understanding.
Mediation is not of obligatory nature, and the parties may withdraw from the process at any stage.

Mediation process is deemed complete after reaching an agreement to the mutual satisfaction of all parties involved, respecting mutual interests. But if no agreement is reached, the process ends by the decision of the mediator, after consultations with all the parties to terminate the proceedings, since it has not given desired resolution.

The Effect of Agreement

The agreement achieved by the process of mediation has the power of:

– out of court settlement, if it is made in writing and is not contrary to public order,
– the executive document, if it is about to fulfilling certain actions.

11 reasons FOR

– quicker resolution of the dispute (procedure’s time limit),
– all the parties win,
– parties are jointly reaching the solution,
– accessible and cheaper,
– all the information remain confidential,
– resolution is steady, and the relations are not disturbed,
– parties define the rules,
– personal values, culture, customs and traditions are taken into account,
– effectiveness and efficiency of the proceedings,
– equality and neutrality,
– agreement has the power of out of court settlement and/or executive document.

How come Mediation Works

The American Arbitration Association reports that over 85% of all mediations result in a settlement, even in the cases where all prior attempts at settlement have failed and where the parties are pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for a trial.

There is number of reasonos:

Negotiations between parties or their attorneys may never take place without the assistance of a third party mediator. Attorneys often fear that the making of any “reasonable” settlement offer will be taken as a sign of weakness or will be used by the other side as the starting point for the next round of negotiations. Mediation provides a safe environment for negotiation because the mediator can control and direct the communications. In this fashion, unproductive discussions can be avoided and concessions or proposals will be communicated only if they are likely to lead to a settlement.

In those cases where some negotiations have taken place, they are often unsuccessful because the parties lack essential negotiation skills. Attorneys are often more interested in posturing, than in resolving disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement. Since the mediator’s job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.

Mediation provides the opportunity for all parties to meet at the bargaining table for the express purpose of discussing settlement. All decision-makers necessary to resolve a problem are normally present. These decision-makers, who otherwise may be unavailable or distracted by other business matters, are able to focus their entire attention on reaching a settlement.

During the mediation session, each party is given the opportunity to directly educate and influence their opponents in the opening presentation. Important issues can be emphasized and facts can be presented in a more favorable light. Also, the intensity of a party’s feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic view of the opposing position (one not filtered through lawyers) and often results in the consideration of settlement proposals that otherwise would have been rejected.

Mediation allows each side to “test market” a settlement proposal by privately conveying the proposal to the mediator in a caucus. Unless authorized to do so, the mediator will not convey the proposal to the other party. The mediator will, however, be able to receive confidential proposals from the other side. As a consequence, the mediator will be able to determine whether a proposal is feasible without actually disclosing it to the other side. This allows each side to fully explore settlement options without negotiating against themselves or appearing to “give in”.

Mediation offers each party a “realistic” look at their case and what results they are likely to achieve in court or arbitration. As the parties become clear on what they can realistically expect to achieve, their positions on settlement become more reasonable and flexible.

Mediation assists the parties in developing options for settlement. The more options that are developed, the greater the chances of success. Experience demonstrates that attorneys often excel in developing facts that support their positions but bog down when it comes to developing settlement options. The mediator can assist the parties to clarify their real objective and to consider alternatives that might be overlooked by attorneys engaged in battle.

The Conclusion

The purpose of the mediation an ARGEEMENT that allows opposing sides to avoid spending time and money on the often lengthy court proceedings. In court proceedings, the decision is based on established facts that are legally relevant to the legal decision-making, including establishing the facts that sometimes do not favor the the parties, thus deepening conflict between them and leading to the escalation of disturbed relations, while mediation serves very rehabilitation and strengthening of those relations, while reducing the number of disputes that are resolved in court.

At the moment, our mediation service is only available on the territory of the Republic of Serbia.