In court disputes, the question is sometimes asked whether the parties agree to try to resolve the dispute through mediation. Basic rules on mediation can be found in the Mediation Act: Law (2011: 860) on mediation in certain private law disputes. It is important to set up rules or a structure for how the mediation should proceed. It must be a “structured process” otherwise the mediation law does not apply. The mediator should be able to help with this.
Mediation is a special kind of settlement negotiation. Traditional settlement negotiations take place directly between the parties or agents. In mediation, the negotiation takes place with the help of a third neutral party, ie a person who has nothing to gain from the fact that the settlement looks one way or the other and which is impartial.
Mediation is a completely voluntary process and the parties should be able to cancel the mediation without consequences when they feel that mediation is no longer meaningful. What is said to the mediator is confidential. That the mediator does not pass on what is said by one party to the mediator in confidence is a fundamental part of the mediation process. Unless the parties have confidence in the mediator’s ability to maintain the confidentiality, the matter should be taken openly or the mediation canceled.
Mediation is good because it costs much less than a court process. If mediation leads to a settlement, it is good because both parties think the settlement is better than the alternative – to let the court judge and take the risk of losing everything.
There are two kinds of mediation; facilitating mediation and evaluative mediation. It is important that everyone is aware of what kind of mediation it is about to put in place.
In facilitating mediation, the mediator tries to help the parties negotiate. The mediator usually avoids interfering in the case itself, but is all the more attentive to making the negotiation process as efficient and constructive as possible. The starting point is mainly the needs of the parties and not the legal rights and obligations of the parties.
It is common for mediation to begin with the mediator trying to find out as much as possible about the needs behind the dispute. Thereafter, the mediator often switches to shuttle diplomacy, that is, tries different possible negotiation solutions and works his way up to a solution that the parties think is better than the alternative; to let the court judge. The difference between ordinary negotiations can be said to be that the mediation can take place so that each party can play with “open cards” against the mediator. The mediator can then see if there is a settlement space in a completely different way than the parties can in a normal negotiation where you cannot play completely openly.
It can be said that facilitating mediation is a process where a person who is good at reading the negotiation game helps the parties to quality assure their decision to either settle or seek a judicial decision. Thus, after a successful mediation, the parties should feel that they have made a wise decision no matter what the decision means.
When evaluating mediation, the parties are usually allowed to argue their respective case, then give the mediator a recommendation or similar on how the dispute could be resolved. The starting point is then usually the mediator’s own idea of how the court is likely to judge whether the dispute can be settled there. It should then be known that the mediator usually gives his opinion without having received all the evidence and rebuttal that the court would receive in order to conduct a more in-depth examination. The mediator’s recommendation becomes a kind of “anchor” for continued settlement discussions.
One could say that evaluative mediation is a very simplified judicial process, where the judgment is replaced by a recommendation that can be followed or rejected.
There are good and bad things to do with both forms of mediation. You could say that it takes quite a lot to be a good mediator, so the choice of person is important. Anyone who is a good facilitator does not have to be a good evaluator and vice versa. Facilitating mediation can be initiated early before the costs of the dispute have been built up. In the case of evaluative mediation, however, it may be necessary for the parties to develop their positions. Such mediation is therefore inserted later in the dispute resolution process.
To suggest mediation is not a sign of weakness. It is a sign of strength in wanting to own their own dispute for as long as possible instead of handing over the decision-making power to a court of unknown people. But there are other risks.
In most cases, speech deadlines and limitation time are postponed when mediation begins. As a rule, the deadlines expire at the earliest one month after the mediation is completed. However, there are exceptions. See Mediation Act section 6. Another risk is that one party says things to the other party during the mediation and that the other party then uses it against the first party if the mediation is interrupted and a court process follows. You should therefore think about what you say to your counterpart so that it is not perceived as concessions or acknowledgments. Another risk is that it costs. It may feel like an unnecessary expense to pay fees to their agent and the mediator, if the mediation does not lead to a settlement. On the other hand, even a mediation without a settlement can lead to the dispute being streamlined and cost less overall.