What is mediation
1.Conflict Management
In time of sickness, each patient has the right to
know how to treat it or
ease its effects. The doctor has a duty to inform him of the advantages
and
disadvantages of the various means available, and advice accordingly, the final choice belonging to the
patient. He must be able to determine in a free and enlightened way.
In time
of conflict, each person – either physical or legal, has the right to
know how
to resolve it. The lawyer has a duty to inform him of the advantages
and
disadvantages of the various means available, and advice accordingly, the final choice belonging to the
client.
He must be able to determine in a free and enlightened way.
Neither
one nor the other is to be under the supervision of specialists for
they have
the freedom and responsibility of choice in these situations with many
others
in our democratic society. There is no reason to deprive them of their
right.
With the method of
mediation, the dispute resolution field
has expanded. The Swiss legislator presents mediation as a method that
has
priority alongside judicial conciliation. The reason being that
litigation
should be the last instance. This is only when a consensual and
sustainable solution
cannot be. Indeed mediation tends to reconstruct or pacify the links,
while the
referee and or judge takes a decision, operation that will often affect
the
relation of the parties.
2. 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.
3. 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.
4. 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.
5.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.
6. What guarantees ?
Guarantees
for partners to mediation are of two levels: the person who mediates
and the right
flow of the process.
6.1. 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.
6.2. 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.
