How does mediation work?
How does mediation work?
- voluntariness - the participation of all parties in mediation is voluntary both at the stage of entering the procedure, and when discussing proposals and making decisions during mediation. This principle does not deprive one party of the right to initiate mediation and invite the other party to the procedure; the other party independently and voluntarily decides to participate in the procedure. The principle of voluntariness also implies that the parties jointly choose a mediator. Any party has the right to withdraw from mediation at any time.
- confidentiality - everything that is discussed in the mediation process remains within the procedure and is not disclosed to any third parties. The parties have the right to make information about the mediation of a dispute public only by mutual agreement. Due to the principle of confidentiality, even higher requirements are imposed on the mediator than on the parties - the mediator is not entitled to communicate to one party the information received from the other party in an individual conversation, without special permission. If, for any reason, the case is continued in court, the mediator is not entitled to act as a witness.
- cooperation and equality of the parties - neither of the parties has advantages in the mediation procedure, both of them have equal rights and opportunities, and by joint efforts determine the movement towards the goal - a mediation agreement. In practice, this principle is most clearly manifested in the process of discussing a disputable situation, when each party is given the same opportunity to express their opinion, determine a list of issues for discussion, assess the acceptability of the terms of the agreement and have equal time for individual work with a mediator.
- neutrality and independence of the mediator - the mediator ensures an impartial, objective and equal attitude towards each of the parties in the mediation process. The mediator does not give assessments and advice, does not express his opinion on the subject of the dispute, but helps the parties to progressively move towards reaching an agreement on the disputed issues. The parties choose a mediator by joint decision; at the request of the parties, mediation may be conducted by two mediators.
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.
- voluntariness - the participation of all parties in mediation is voluntary both at the stage of entering the procedure, and when discussing proposals and making decisions during mediation. This principle does not deprive one party of the right to initiate mediation and invite the other party to the procedure; the other party independently and voluntarily decides to participate in the procedure. The principle of voluntariness also implies that the parties jointly choose a mediator. Any party has the right to withdraw from mediation at any time.
- confidentiality - everything that is discussed in the mediation process remains within the procedure and is not disclosed to any third parties. The parties have the right to make information about the mediation of a dispute public only by mutual agreement. Due to the principle of confidentiality, even higher requirements are imposed on the mediator than on the parties - the mediator is not entitled to communicate to one party the information received from the other party in an individual conversation, without special permission. If, for any reason, the case is continued in court, the mediator is not entitled to act as a witness.
- cooperation and equality of the parties - neither of the parties has advantages in the mediation procedure, both of them have equal rights and opportunities, and by joint efforts determine the movement towards the goal - a mediation agreement. In practice, this principle is most clearly manifested in the process of discussing a disputable situation, when each party is given the same opportunity to express their opinion, determine a list of issues for discussion, assess the acceptability of the terms of the agreement and have equal time for individual work with a mediator.
- neutrality and independence of the mediator - the mediator ensures an impartial, objective and equal attitude towards each of the parties in the mediation process. The mediator does not give assessments and advice, does not express his opinion on the subject of the dispute, but helps the parties to progressively move towards reaching an agreement on the disputed issues. The parties choose a mediator by joint decision; at the request of the parties, mediation may be conducted by two mediators.
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.
FAQ
What is mediation?
Mediation is the process of resolving disputes with the assistance of a neutral person - a mediator - based on the free consent of the parties. General rules for the mediation procedure, the rights and obligations of mediation participants are stipulated by the Federal Law of 27.07.2010 N 193-FZ "On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure)". Mediation at the stage of judicial resolution of the dispute is provided for by Articles 153.1., 153.2., 153.5 of the Code of Civil Procedure of the Russian Federation, Articles 138.2., 138.4, 225, 225.5 of the Arbitrazh Procedure Code of the Russian Federation, Article 137 of the CAS RF.
Who is a mediator?
Mediator is an independent negotiator appointed by the parties to assist in reaching a solution and resolving a dispute. A professional mediator shall have a higher education and additional professional education on the application of the mediation procedure.
What disputes does the mediation procedure apply to?
The mediation procedure is applied to disputes arising from civil, administrative and other public legal relations (unless public interest is affected), including in connection with the parties' entrepreneurial and other economic activities, as well as disputes arising from labor (except collective disputes) and family legal relations. The use of mediation techniques is also advisable when resolving internal conflicts in companies.
When is mediation possible?
Mediation is possible at any stage of the dispute - both before the parties go to court in civil, administrative or arbitrazh proceedings, as well as after the parties go to court (including arbitrazh), as well as at the stage of enforcement proceedings.
How long is the mediation procedure?
According to the law, the mediation procedure should not exceed 180 days, and in a dispute pending before the court - 60 days. In practice, mediation rarely takes more than 20 days.
How is the mediation procedure going?
The way of carrying out the mediation procedure is determined by the agreement of the parties. Mediation can take place in the form of joint meetings or, at the request of the parties, in a "shuttle" mode, when the mediator meets in turn with each of the parties to discuss the situation and develop proposals. By agreement, the meetings can be held in person or by video link. At any stage, the parties have the right to change the way the procedure is carried out.
How are the results of the mediation procedure formalized?
The agreements reached by the parties are confirmed by a mediation agreement. If a pre-trial dispute is resolved, the parties may limit themselves to signing a mediation agreement with a detailed statement of the obligations of the parties, the conditions and terms of their fulfilment, and, if necessary, notarize such an agreement. If, as a result of mediation, an agreement is reached on a dispute that was previously referred to the court, such a mediation agreement is approved by the court as an amicable agreement (according to the Arbitrazh Procedure Code of the Russian Federation and the Code of Civil Procedure of the Russian Federation) or an agreement on the reconciliation of the parties (Article 137 of the CAS RF).
How is the mediation procedure paid?
The procedure is paid by the parties in equal shares, unless the parties provide for a different payment procedure by the agreement on mediation. The cost of mediation services is determined by the Rules of the Solis Mediation Center on Fees and Expenses.
How to start the mediation procedure?
A proposal to conduct a mediation procedure can be put forward by any party independently at any stage of the dispute. If, due to the conflict, the party cannot take the initiative in inviting to mediation, then the party initiating the mediation settlement can contact the mediator, and he will send a proposal to conduct mediation to the other party.
The dispute is considered in court. How to start the mediation procedure?
To settle the current litigation by way of mediation, the parties shall submit an appropriate request (Article 138.4 of the Arbitrazh Procedural Code of the Russian Federation, Article 153.5 of the Code of Civil Procedure of the Russian Federation, Article 137 of the CAS RF), in this case the court postpones the trial and provides the parties with the opportunity to conduct a mediation procedure. We recommend that the parties discuss the possibility of mediation or, at a minimum, send a proposal for mediation to the other party before filing a petition, since in practice the court specifies whether the petition will be supported by both parties.
How is the mediation agreement executed?
Since the entire mediation procedure is a process of reaching a mutually beneficial solution for the parties, the mediation agreement in the overwhelming majority of cases is executed by the parties voluntarily and in good faith. For greater confidence, the law gives the parties the opportunity to certify the mediation agreement with a notary - in this case, the agreement acquires the force of an executive document.
Is it possible to refuse mediation?
Yes, mediation is a purely voluntary procedure. The party can refuse to conduct mediation both at the initial stage and during the discussion of the dispute and even when the terms of the agreement are being developed. In addition, the mediator also has the right to declare the termination of mediation or the impossibility of carrying it out in the event that mediation is inexpedient or the requirements of the law are violated.
What is mediation?
Mediation is the process of resolving disputes with the assistance of a neutral person - a mediator - based on the free consent of the parties. General rules for the mediation procedure, the rights and obligations of mediation participants are stipulated by the Federal Law of 27.07.2010 N 193-FZ "On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure)". Mediation at the stage of judicial resolution of the dispute is provided for by Articles 153.1., 153.2., 153.5 of the Code of Civil Procedure of the Russian Federation, Articles 138.2., 138.4, 225, 225.5 of the Arbitrazh Procedure Code of the Russian Federation, Article 137 of the CAS RF.
Who is a mediator?
Mediator is an independent negotiator appointed by the parties to assist in reaching a solution and resolving a dispute. A professional mediator shall have a higher education and additional professional education on the application of the mediation procedure.
What disputes does the mediation procedure apply to?
The mediation procedure is applied to disputes arising from civil, administrative and other public legal relations (unless public interest is affected), including in connection with the parties' entrepreneurial and other economic activities, as well as disputes arising from labor (except collective disputes) and family legal relations. The use of mediation techniques is also advisable when resolving internal conflicts in companies.
When is mediation possible?
Mediation is possible at any stage of the dispute - both before the parties go to court in civil, administrative or arbitrazh proceedings, as well as after the parties go to court (including arbitrazh), as well as at the stage of enforcement proceedings.
How long is the mediation procedure?
According to the law, the mediation procedure should not exceed 180 days, and in a dispute pending before the court - 60 days. In practice, mediation rarely takes more than 20 days.
How is the mediation procedure going?
The way of carrying out the mediation procedure is determined by the agreement of the parties. Mediation can take place in the form of joint meetings or, at the request of the parties, in a "shuttle" mode, when the mediator meets in turn with each of the parties to discuss the situation and develop proposals. By agreement, the meetings can be held in person or by video link. At any stage, the parties have the right to change the way the procedure is carried out.
How are the results of the mediation procedure formalized?
The agreements reached by the parties are confirmed by a mediation agreement. If a pre-trial dispute is resolved, the parties may limit themselves to signing a mediation agreement with a detailed statement of the obligations of the parties, the conditions and terms of their fulfilment, and, if necessary, notarize such an agreement. If, as a result of mediation, an agreement is reached on a dispute that was previously referred to the court, such a mediation agreement is approved by the court as an amicable agreement (according to the Arbitrazh Procedure Code of the Russian Federation and the Code of Civil Procedure of the Russian Federation) or an agreement on the reconciliation of the parties (Article 137 of the CAS RF).
How is the mediation procedure paid?
The procedure is paid by the parties in equal shares, unless the parties provide for a different payment procedure by the agreement on mediation. The cost of mediation services is determined by the Rules of the Solis Mediation Center on Fees and Expenses.
How to start the mediation procedure?
A proposal to conduct a mediation procedure can be put forward by any party independently at any stage of the dispute. If, due to the conflict, the party cannot take the initiative in inviting to mediation, then the party initiating the mediation settlement can contact the mediator, and he will send a proposal to conduct mediation to the other party.
The dispute is considered in court. How to start the mediation procedure?
To settle the current litigation by way of mediation, the parties shall submit an appropriate request (Article 138.4 of the Arbitrazh Procedural Code of the Russian Federation, Article 153.5 of the Code of Civil Procedure of the Russian Federation, Article 137 of the CAS RF), in this case the court postpones the trial and provides the parties with the opportunity to conduct a mediation procedure. We recommend that the parties discuss the possibility of mediation or, at a minimum, send a proposal for mediation to the other party before filing a petition, since in practice the court specifies whether the petition will be supported by both parties.
How is the mediation agreement executed?
Since the entire mediation procedure is a process of reaching a mutually beneficial solution for the parties, the mediation agreement in the overwhelming majority of cases is executed by the parties voluntarily and in good faith. For greater confidence, the law gives the parties the opportunity to certify the mediation agreement with a notary - in this case, the agreement acquires the force of an executive document.
Is it possible to refuse mediation?
Yes, mediation is a purely voluntary procedure. The party can refuse to conduct mediation both at the initial stage and during the discussion of the dispute and even when the terms of the agreement are being developed. In addition, the mediator also has the right to declare the termination of mediation or the impossibility of carrying it out in the event that mediation is inexpedient or the requirements of the law are violated.