Why is mediation needed if there is a court?
This is a natural question that the party asks when it comes across the very concept of mediation for the first time.
Of course, the right of a party to resolve the dispute in court is not questioned. However, is the court proceeding so effective and what does it give the parties in the long term?
Any legal dispute is based on a conflict, but not every conflict is of a legal nature. A significant drawback inherent in the judicial resolution of the dispute is connected precisely with the difference between these concepts - the court resolves the dispute, but does not stop the conflict. Evidence of this is litigation, dragging on for years, when the case moves from one instance to another or the dispute is overgrown with new court proceedings. By virtue of the law, the court takes a formal position and does not consider the true reasons for the conflict situation. Of course, no kind of legal procedure takes into account the emotional or ethical background of the conflict.
The essence of the mediation procedure is to find a solution that will satisfy both parties and lead to the elimination of the conflict between them, which will allow to “put an end” to disputes that would drag on in courts for many years, “eating up” the participants' time and money.
Unlike in court proceedings, the terms of mediation depend only on the parties, their wishes and intentions to resolve the conflict. The cost of mediation in most cases is significantly lower than the cost of conducting a case in court.
Mediation is not a concession or a manifestation of a weak position in a dispute. Mediation reveals the true interests of the parties and helps to find a mutually beneficial solution. Mediation provides a real opportunity for the parties not only to settle a dispute, but also to maintain a relationship in cases where it is important or necessary for them - for example, between partners in business or between parents in a divorce.
As you know, the decision made by the court is not a guarantee of the receipt of the awarded property or the fulfilment of obligations. The creditor can spend almost more time on the execution of the court decision than on obtaining it. The result of mediation is an agreement that is developed by the parties themselves, based on the interests of each of them, therefore, the percentage of voluntary execution of mediation agreements is very high.
A significant advantage of mediation is confidentiality. It is almost impossible to avoid publicity when considering a dispute in court: for arbitrazh cases, the publicity of court proceedings is named one of the key tasks of legal proceedings (Article 2 of the Arbitrazh Procedure Code of the Russian Federation), and a separate article is devoted to the openness of proceedings in courts of general jurisdiction in the Code of Civil Procedure of the Russian Federation (Article 10). The decisions of the courts are posted both in the databases of court decisions and in the reference and legal systems. On the contrary, mediation is an extremely confidential procedure. Your dispute will remain only between you, and no outsiders will have access to information about your business, your transactions and relationships.