MEDIATION EXPLAINED
When you’re at the edge of a cliff, sometimes progress is a step backwards.
Anonymous
Types de médiation
F. A. Q.
process unfolding
Origins
understanding conflict
Types of Mediation
Out-of-court mediation
Out-of-court mediation is an extrajudicial process that allows the parties in conflict to reach an agreement with the help of a mediator. Out-of-court mediation can be used to manage all conflicts and be initiated in parallel with legal proceedings.
Penal mediation
Penal mediation is a process that is usually proposed or urged on the initiative of a judicial authority. With the consent of the parties, a mediator is appointed by a Judge. In most civil cases, parties themselves can request a mediation.
Areas of Mediation
General mediation
By and large, general mediation encompasses all facets of out-of-court mediation. This process is facilitated by mediators who are well-versed in the fundamental principles of mediation. Specialization in different domains allows to consider aspects specific to a given area.
Commercial mediation
It provides a valuable avenue for companies and individuals to circumvent disputes and resolve conflicts. This process, which upholds confidentiality—a guarantee that legal procedures may not offer—proves particularly beneficial in transnational conflicts. It offers a platform for conflict resolution that not only addresses the immediate issues but also fosters a positive environment for future interactions.
Healthcare mediation
This process addresses conflicts that may arise between patients and doctors. While it can be challenging to implement, it becomes more manageable if a file documenting the medical error has been established beforehand.
Family mediation
Family mediation has expanded to respond to the evolution of families. It is now used in a wide range of situations, including marital conflicts, parent-adolescent relationships, succession and inheritance conflicts, family businesses and senior care.
Workplace mediation
It is as an ideal mechanism for fostering harmonious relationships among colleagues. In Switzerland, legislation enacted in 2011 mandates employers to implement all feasible measures to mitigate psychosocial risks, thereby preventing workplace mobbing and harassment..
Construction Mediation
Given the significant implications of real estate projects, mediation frequently takes precedence over judicial or arbitration routes. This preference stems from the numerous benefits it provides, including its adaptability, cost-efficiency, and swift execution.
Styles of Mediation
Out-of-Court Mediation
As the earliest form of mediation, this approach involves the mediator aiding parties in dissecting problems and investigating solutions conducive to conflict resolution. The mediator plays a crucial role in averting tension escalation by urging parties to moderate their conduct and discourse. By actively listening and acknowledging concerns, the mediator supports the parties in pursuing a fair and mutually agreed-upon settlement.”
evaluative Mediation
This form of mediation sees the mediator taking on a more active role. Acting as an expert, mediators assess the issues at hand and the parties’ arguments, and may even predict how a judge might decide in a court ruling. This approach emphasizes a cost-benefit analysis to facilitate a rational dispute resolution. While evaluative mediation bears similarities to conciliation, it is crucial to note that mediation is a strictly voluntary process.
Transformative mediation
As an evolution of the facilitative approach, its objective is to bring about significant change in the relationship dynamics. This change is intended to reestablish communication and foster a renewed attention to each party’s needs. This strategy empowers the involved parties to seek solutions that are both satisfying and enduring. Transformative mediation is especially beneficial in familial disputes where a strained relationship requires rebuilding on new foundations.
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F.A.Q.
Can I be forced to participate in a mediation ?
Mediation is an entirely voluntary procedure. It cannot be imposed upon you against your will. Moreover, all involved parties can disengage from the mediation process at any point. This prerogative extends to the mediator as well, who has the discretion to terminate the mediation if they deem the prevailing conditions unsuitable for its continuation.
Can I be forced to accept a mediation agreement ?
You should never feel compelled to consent to an agreement that does not align with your interests. During the negotiation phase, it’s crucial to contemplate all facets of the agreement and voice your needs and expectations unequivocally. Pay heed to the concerns raised by other participants and actively engage in seeking a mutually agreeable compromise.
What happens If An Agreement Is Breached ?
Mediation agreements are legally binding contracts between the parties involved. Once signed, they carry the same weight as any other contract. Although mediation agreements are only reached when both parties are satisfied, it may be prudent to include a clause outlining the consequences of non-compliance, even though breaches rarely happen.
If the mediation fails, Can the Mediator Be Summoned to Testify in Court ?
Mediators are obligated to maintain absolute confidentiality. Under no circumstances can they be called upon to testify on behalf of either party, irrespective of the mediation’s outcome. Their role and any potential advice dispensed do not entail any direct liability on their part.
Can issues discussed during a Mediation be mentioned during Legal Proceedings ?
You can only discuss the mediation if you have received explicit permission from the other party(ies) involved. Mediations are governed by a stringent confidentiality clause, which can only be waived with the unanimous consent of all parties. The specifics of how and under what conditions the confidentiality can be lifted should be clearly outlined in the mediation agreement.”