Mediation

Mediation is the most known Alternative Dispute Resolution (ADR) process, lying, as it is said, “at the heart of ADR”. It, however differs from arbitration, since although arbitration presents an alternative to litigation, it is nonetheless fundamentally the same in that the role of both the Judge and the Arbitrator is judgmental. Not Judges, neither Arbitrators have the right to propose or help parties to find the best solution to their dispute, but rather make a binding decision.

According to Greek Law (art. 4β) mediation is “a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator”.

The basics characteristics of mediation are:

• Speed

Experience of both international and Greek but practice has shown that the vast majority of the cases brought to mediation results in agreement within eight hours

• Voluntary nature

Mediation is based on the will of the parties to use it as a means to solve their dispute. The parties are at any time free to stop the process. Although, it is generally advised by experience mediators or people who have attended mediation to exercise persistence, patience and try not to give in, but rather try to keep at it, the fact is that the parties are not locked in the rooms of the mediation. They can simply leave and “go home” at any time they feel they cannot go on. And of course, exactly because the whole process is based on the will of the parties, they can later on, decide to try mediation again

• Confidentiality

The whole process of the mediation is strictly confidential in two, particularly, respects.

The first is that (unless there is an express agreement of the parties for the contrary) if the case does not settle and it has to go to court (or to arbitration) anything said or occurred throughout the process “stays there”. No-one, neither the parties, nor the mediator or anyone else involved in any way to the process is allowed to make any reference or to disclose to anyone else anything said or occurred throughout the process, unless of course he is explicitly authorised by both the parties. Furthermore, anything said or occurred throughout the process cannot be used before a court of law or an arbitral tribunal. Only the settlement can be brought before one of those bodies, and only if the parties failure to honour their decision.

The second parameter of confidentiality is related to the mediator himself. At a certain point during the procedure, the mediator will have “private meetings” with the parties, i.e. meetings in which will be present only the mediator and one of the parties. The mediator is not allowed to disclose to the other party anything said or occurred during those “private meetings” unless of course explicitly authorised by the party.

• Non – bonding procedure until its end

Going with the voluntary nation of mediation is the notion of a non – binding procedure until the signing of the final agreement. Nothing is binding legally until that agreement is written up and signed by the, so authorized, parties. This fact (strengthened by confidentiality) gives people the opportunity to talk generally about the way things might resolve without been committed until the agreement is signed.

• Mediators role

Mediator is neutral and impartial. He should not be related or depended by either of the parties. The mediator is neither a judge, nor an arbitrator and therefore does not rule in favor one or the other, does not issue a decision or an award. The mediator is not a party to the mediation procedure. He is only there to help the parties to find their own solution, freely accepted by all of them. His role is, therefore, to become the “medium” through which the parties will find such a solution. Pursuant to his role, the mediator does not (and should not) come to the procedure with the view to favoring one or the other party or disliking one or the other side. He should always keep in mind that it is the parties who will (hopefully) find the solution. Such a solution, provided that it is not against the law, can be shaped in any form which, at the eyes of the mediator might not look as the ideal solution for the said case. However, the mediator cannot criticize such an agreement, exactly because his role was effectuated at the time the parties reached a mutually accepted agreement.

One of the most known examples trying to explain the advantages of Mediation against Arbitration or any other (alternative to litigation) form of dispute resolution is that of the orange. In this example two persons (to whom the story teller can attribute any kind of relationship, i.e. brothers, spouses, business rivals etc), both want desperately to obtain the one and only batch of oranges available to them. If they choose to resolve their dispute in court, by the end of the dispute no one will, most likely, need the oranges anymore (even if they manage somehow to stay fresh and usable). A Court decision or an Arbitral award will be, in line with the parties claim (i.e. to obtain the oranges) in favor of one of them. One will take the oranges and the other will take nothing.

For the sake of the example, in that story, the parties decide to try Mediation; and during the process the unexpected happen: they discover that, actually, there is no dispute. They both want the oranges, but in reality, one of them needs the peel to produce orange marmalade, while the other needs its content to produce orange juice.

Mediation solved the case. And thus, because Mediation is targeting the needs and wills of the parties and in particular the “hidden” needs and wills of the parties trying to bring them in surface. It targets not to “cut the pie in pieces” and give the shares to the parties, but rather to “expand the pie” (to quote a phrase very common in the books teaching negotiations) and leave everyone happy.