What is mediation ?
Mediation is not the only amicable (consuel) dispute resolution, but the less known and practiced. Therefore it deservese to be presented there.
- Why mediation ?
Mediation has many advantages over traditional tools of dispute resolution (court proceedings and arbitration): Firstly, it is faster, cheaper and more constructive. It allows the parties to resolve their conflict as a whole, in all its aspects, including emotions, concerns, needs, values and interests, which are not taken into account in civil procedures and arbitrations. Conventional procedures are indeed limited to the examination of the facts pre-selected and offered into evidence, without being able to depart from the conclusions of the parties. In its development (the process) as in the construction of its solution (the content of their agreement), mediation manifests itself as a customized method for the parties. Finally, it allows for a win-win outcome, restore or rebuild social ties, or ends it on an amicable way.
This is more suitable than the judicial and arbitral battle that has a resulting outcome of a winner and loser, and uncertainties arising from the various possible recourses.
- What is it ?
Mediation is a method to prevent or resolve disputes. Its process, voluntary and confidential, is to involve a third party – the mediator – to restore dialogue and assist the parties in a negotiation, facilitated to build for themselves their own solution.
The mediator is responsible for the process of the proceedings; the parties being the only masters of its outcome. Therefore, the mediator poses as a facilitator in negotiation by his maieutics, by abstaining from all council, opinion and decision in terms of the solutions.
- When does it intervene ?
Mediation can intervene early in a conflict, when the first difficulty between the parties is known, even before a court referral, this by example either by a contractual clause, or by an ad hoc decision of the parties. The law also provides that it can intervene in the referral to the court, instead of compulsory conciliation, or during the procedure, even in first and second instance. The same applies – more or less- to the arbitration.
4.How does it proceed ?
After freely choosing a mediator, the parties shall convened at an interview prior to check their free membership, their power (to represent legal persons) and to prepare the terms of the process.
The hourly rate is fixed at an early stage and the costs are shared between the parties.
Mediation then takes place with one or more joint sessions, these may include asides (caucus) if necessary, the parties may be accompanied or not by their boards in each or some of the steps. It commits each party to take a respectful behavior, fair and constructive in order to resume the dialogue, understanding their differences and making options, which in between are established through a reality check.
- What guarantees ?
Guarantees for partners to mediation are of two levels: the person who mediates and the right flow of the process.
5.1. The mediator must afford complete professional skill and ethics. It is preferable to choose from the official list issued by the State Council in Geneva, the District Court in the Canton of Vaud, and other authorities also examining whether it fulfills the conditions provided by law. Moreover, umbrella associations such as the Swiss Chamber of Commercial Mediation (SCCM / SKWM) issue a certification.
5.2. The flow of the process is governed by basic principles that are almost universal:
- Humanity:the human person is in the heart of the mediation process. Mediation aims to restore the dialogue. It has the consequence of reducing or alleviating the suffering and waste of any kind caused by the conflict
- Multipartiality and empathy of the mediator:it is committed to serving the parties fairly, without making discrimination. It assumes the proper conduct of the process ;
- Freedom and autonomy: the parties are free to accept or refuse to enter the process and can leave any time. The mediator is free to initiate, prosecute, suspend or terminate processes ;
- Responsibility:the parties have a duty to engage in good faith in the process, to behave in a respectful and transparent way and to respect confidentiality. They are responsible for its outcome. The mediator is responsible for the proper conduct of the process; he has a duty to ensure that the parties understand the characteristics of the process, their role and his own. The mediator must ensure that the parties give their final agreement in a free and informed consent, and invite, if necessary, to consult. It has a duty to terminate if the solution is considered impractical or contrary to law ;
- Independence:The mediator is independent. It must disclose to the parties any circumstances that are objectively or subjectively likely to compromise its independence ;
- Neutrality:the mediator does not take part in the controversy and does not comment on the content of the dispute ;
- Humility or lack of power:the mediator has no decision-making ;
- Confidentiality:the parties and the mediator agree not to disclose to third parties any statements, opinions or proposals made during the process. Neither are they allowed to produce in subsequent proceedings the concerned documents. The parties agree not to cite the mediator as a witness. The mediator is also sensitive to the existence of the process and the names of the parties.