Law
Mediation
01 March, 2012
Mediation

Judge Lasha Kalandadze is today answering our questions on the details of Mediation:

 

NBR – What is mediation?

L.K. – Mediation is an alternative dispute resolution (ADR) process run by a neutral and impartial third person, called mediator, to assist the disagreed parties to clear up differences and  misunderstandings, determine the concerns and reach a voluntary and mutually acceptable agreement.

NBR – What is the difference between mediation and arbitration?

L.K. – Arbitration is a more formal alternative dispute resolution process than mediation. The

arbitrator makes a final and legally binding ruling whereas the main function of mediator is to help and facilitate disputants in resolving a disagreement and coming to an amicable settlement. If mediation fails to reach an agreement, the disputing parties may go to arbitration or initiate litigation.

NBR – Could you please briefly provide us with information about the forms of mediation?

L.K. – Yes, I certainly can. There are two forms of mediation: mandatory mediation and voluntary mediation. In many developed countries both forms of mediation are effectively operated. Mandatory mediation means that certain kind of cases, especially family, marital, divorce and labor disputes are required to be mediated before initiating litigation or submitted to mediation by the decision of a trail judge. As for a voluntary mediation, any kind of case may be  a subject to mediation by the agreement between disputing parties. I want to add that there are following types of mediation: facilitative and evaluative mediation. In facilitative mediation, mediator assists the parties in finding and analyzing options for resolution, helps them in reaching a mutually agreeable settlement. The evaluative mediator makes recommendations to the disputants, gives them advice or expresses opinion as to the outcome of the case or predicts the court ruling in case of possible litigation. But the reality is that in case of merging and integrating of these two types, mediation operates and works more successfully and fruitfully to assist parties to a dispute to reach an agreement.

NBR – In what case mediation would have a chance to be effective and satisfactory for both parties?

L.K. – Mediation is effective when both parties are prepared to resolve a disagreement. It is most effective when: a) the issue involves emotional feelings; b) the parties know each other; c) the parties want to maintain their relationship; d) one party feels uncomfortable confronting the other side; e) one or both parties want to avoid costly legal litigation.

NBR –How about the benefits of mediation?

L.K. – Disputants who are considering the usage of mediation as a way of resolving their differences often want to know in advance what the process suggests. While mediation cannot guarantee any expressly specified results, it still maintains a certain potential to yield into a ‘happy end’, so to speak. To put it in more specific terms, mediation produces or promotes the following: rapid settlements, economically justified decisions, mutually satisfactory outcomes, high rate of compliance, solid degree of control, predictability of outcome, preservation of an ongoing relationship or termination of a relationship in a more amicable way, workable and implementable decisions, agreements that are better than simple compromises or win/lose outcomes, decisions that hold up over time, etc.

NBR –What is the role of the mediator?

L.K. – The mediator's role is to do all that is necessary to assist parties to reach mutually acceptable agreement. The mediator assists in contacting the other parties to arrange for an introductory meeting, educates the parties about the mediation process, ensures that the participants and the mediator have a full understanding, suggests procedures for making progress in mediation discussions, offers options for consideration, stimulates new perspective, manages and keeps track of all necessary information, writes up the parties' agreement and assists them to implement their agreement, and so on and so forth. Finely, I simply wanted to add that mediation, as an alternative dispute resolution process, enhances legal consciousness of the members of a society and ensures proactive participation and involvement in resolving their disagreements and misunderstandings.

 

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