Mediation procedure – the efficient and cheapest way to resolve disputes
Mediation Procedure (hereinafter: “Mediation”) is a process that can be very helpful throughout our lives. A person’s life is full of conflicts with various parties, whether it be between colleagues, spouses or neighbors. It is undesirable and impractical to resolve every dispute with a judicial case. Conflict management in courts have a high mental and economic cost. When it comes to a divorce dispute, it can also involve serious harm to the children who experience the rift between their parents; a harm that can affect their lives for many years to come. Using mediation is the best and most effective way to resolve these conflicts.
Mediation is a dispute resolution procedure which saves parties from the various harms arising from legal proceedings, and often preserves and improves the relationships between the disputing parties. Mediation is managed by a qualified mediator, whose job is to bring the parties to an agreement without having the authorities decide the outcome. The entire procedure is voluntary, and the parties can enter or exit as they wish, and come to agreements out of their own free will. The mediator accompanies the parties throughout the mediation and, if applicable, until an agreement is signed between the parties (hereinafter: the “agreement”). The agreement is written by the mediator and signed with the consent of the parties. It can then be brought to court in order to give the judgment validity.
Characteristics of the mediation procedure:
Mediation has various characteristics that differentiate it from other procedures (arbitration, trial). In this article we will discuss these characteristics.
- The free will of the parties
All aspects of mediation are always subject to the free will of the parties. This includes entering into mediation, remaining there and the details of any agreement that arises. Mediation is entirely based on the wishes of the parties, and therefore they are the sole decision makers in each of the various stages.
At the beginning of mediation, the parties sign a “Mediation Participation Agreement”, in which they regulate the “ground rules” according to which the mediation will be conducted.
- The mediator’s role
Since the parties cannot reach an agreement on their own, the mediator’s job is to pave the way for the parties to sit together and reach a fair conclusion or resolution. The mediator has a variety of ways to do this. This could include a joint or separate meeting with each party and could be with or without their attorneys. In each of these ways the mediator operates with his own arsenal of tools and techniques.
Mediation is characterized by the secrecy of the information transmitted during it. This topic is regulated by law:
Acceptance of Evidence: “Things provided in the context of a mediation proceeding shall not be used as evidence in civil litigation” (Section 79C (d) of the Law).
Confidentiality of the mediator: “The mediator will not use any information provided to him during mediation, which could not otherwise have been obtained by reasonable effort, for any purpose other than mediation” (section 5 (d) of the Regulations).
“The mediator will not disclose any information provided to him during mediation to anyone who is not a party to the mediation” (section 5(e) of the Regulations).
“If a party provides information to a mediator with a demand to keep it confidential, the mediator will keep the confidentiality of information, unless the information ethics disclosure has been waived” (section 5 (f) of the Regulations).
Confidentiality of the Parties: Is not regulated by law, so the interested parties should settle it in the “mediation participation agreement”, thus providing a comprehensive and complete environment to the secrecy of mediation.
- Mediator’s neutrality
The mediator is required to be neutral and free of personal interests during mediation and his relations with the parties. This issue is outlined in the “Mediation Participation Agreement”, and is also regulated by law:
“The mediator will refuse to be appointed if:
- He had a professional or personal connection with one of the parties before, unless he informed the opposite party and they gave their consent to his appointment in writing ”(section 5 (b) (1) of the Regulations).
- He may, in his opinion, be found to be directly or indirectly in a conflict of interest between his role as a mediator and another matter. The fear of conflicts arises during mediation, the mediator will cease mediation, and inform the court that he can no longer serve as a mediator” (section 5 (b)). (2) of regulations).
Advantages of using mediation procedure instead of going to court:
- Increasing areas of interests
Mediation allows the parties to momentarily exit the specific conflict in which they are involved in and instead identify other issues in which they may have common interests. This can then be included in the agreement. By doing so, they increase both their bargaining options and the chances of fulfilling interests which go beyond the specific dispute. This contrasts a Court procedure where only the specified dispute is discussed.
For example, a couple who want to get divorced may come to mediation where they can draft a divorce agreement that settles any subject that they want to arrange, (property distribution, child custody, alimony, etc.) all under one agreement.
- Effects on the relationship between the parties
Mediation is managed patiently and in a comfortable and calm climate, as opposed to a trial, which is often conducted in a combative and warlike manner. This gives the parties the potential to; whitewash their disagreements; reach a reconciliation; enable the preservation and reinvigoration of their relationship or open new channels of communication between them.
- Saving time
Managing a legal process can take years for several reasons including the high burden on the courts, which causes a long delay between each of the various legal stages. In contrast, in mediation this issue does not arise, as the parties can manage it at their own pace and reach a consensus over a short period, saving considerable time.
- Financial savings
Legal procedures involve many expenses, such as attorneys’ fees, court fees, expert witness fees, and more. In mediation the only expense that arises is the mediator’s fees (which is not dependent on the outcome of the mediation process).
In addition to this, mediation is a much cheaper procedure because it is faster than legal proceedings which can take several years, adding to the associated expenses.
- Parties control over the process
Mediation is characterized by the parties’ free will. The identity of the mediator, the entry into the mediation, the conduct within it and the signing of the agreement at the end of the procedure are all subject to the will of the parties. A party can leave mediation at any stage.
In a legal process there is a clear procedure that determines how the parties should proceed. The parties do not determine the judge’s identity, which also determines the outcome at the end through a ruling. In mediation, the parties are given control over these matters.
- Final outcome
Mediation bridges parties together. This route guarantees that the parties will not come out empty-handed. A legal process is accompanied by the risk that the parties will come out with nothing, perhaps even with substantial losses (loss in trial, expenses, etc.).
Is mediation procedure ever obliged by law?
There are legal procedures in which the law requires a sort of a mediation meeting, in order to check whether agreements can be reached prior to the opening of a Court trial. These include:
- Civil claims whose value exceeds 75,000 NIS
- Family Conflict Claims
In these circumstances, the meetings are solely for the purpose of examining the possibility of mediation between the parties. If the parties are referred to a mediation procedure they will usually have to find on their own mediator. This mediation is less effective for several reasons:
- The parties will still be charged a court fee for opening the case.
- The parties have already entered a legal process with all the accompanying (various expenses, mental preparation). It is doubtful if at this stage they will be entering with an open heart and soul to resolve the dispute through a mediation process. This makes the mediation less effective.
- This is all in place of entering mediation through the front door, where time and money can be saved.
The validity of a mediation agreement
After signing an agreement reached during mediation, the parties have two options:
- The agreement is signed like any other contract. Therefore, all contract laws apply.
- Bring the unsigned agreement to a competent court in order to have a judge validate it. In this way, the parties will be able to contact the implementing authorities directly in the event of a breach of the agreement. This is the recommended option.
Interested in a mediation process? COHEN, DECKER, PEX & BROSH LAW-FIRM ARE HERE AT YOUR SERVICE
At the Cohen, Decker, Pex & Brosh’s Law Offices you will meet expert attorneys in various fields, who are also qualified as mediators. Our attorneys will guide you throughout the mediation process until an agreement is signed that will satisfy the parties’ wishes.