What is Mediation?
Mediation is one of the so-called Alternative Dispute Resolution methods (ADR). It is an extra judicial process in which the parties pursue the amicable settlement of their disputes with the help of a third, independent, neutral and impartial person, the Mediator.
Mediation differs and should not be confused with arbitration; although arbitration presents an alternative to litigation, they are, nonetheless, both fundamentally the same in that the role of both the Judge and the Arbitrator is judgmental. Neither Judges nor Arbitrators have the right to assist parties in finding the best solution in their dispute, but rather limited in making a binding decision.
According to Greek Law 4640/2019 (art. 2 par. 2) (similar was, also, the relevant provision of the previous Law in art. 4) «Mediation is a structured procedure, regardless of name, the basic characteristics of which is confidentiality, and private autonomy, in which two or more parties attempt voluntarily and in good faith and transactional frankness, to negotiate a settlement agreement with the help of a mediator».
Mediation is, therefore, exactly this: a process that gives the parties the opportunity to restore the, lost at that moment, communication; to express their wishes and their desires; to freely and without commitments, explore possible solution and, eventually be driven to the best possible solution for all.
The basic characteristics of Mediation are:
- Speed
Experience of both international and Greek practice has shown that the vast majority of the cases brought to mediation results in a settlement agreement within eight hours.
- Voluntary nature
Mediation is based on the will of the parties to participate and settle their dispute by it. The parties are at any time free to stop the process and leave. But at the same time, they are also free to step into mediation again.
- Confidentiality
One of the basic characteristics of mediation, which allows the smooth evolution of the process.
Anything said or occurred throughout the process “stays there”. No-one, neither the parties, nor the mediator or anyone else involved in any way to the process is allowed to make any reference or to disclose to anyone else anything said or occurred throughout the process, unless of course he is explicitly authorized by both parties. In addition, anything said or occurred throughout the process cannot be used before a court of law or an arbitral tribunal.
Furthermore, the mediator is not allowed to disclose to the other party anything said or occurred during the “private meetings” unless of course explicitly authorized by this party.
- Non – binding procedure
Basic characteristics of mediation is the notion of a non – binding procedure until the signing of the final agreement. Anything said, proposed, counter-proposed during mediation, is not binding legally until that agreement is drawn up and signed by the, so authorized, parties. This fact (strengthened by confidentiality) gives people the opportunity to talk generally about the way things might resolve without been committed until the agreement is signed.
- The role of the Mediator
The Mediator is neutral and impartial. He should not be related to or depended by either of the parties.
The mediator is neither a judge, nor an arbitrator and therefore does not rule in favor of one or the other and does not issue a decision or an award. The mediator is not a party to the mediation procedure. He is only there to assist the parties in finding their own solution, freely accepted by all of them. His role is, therefore, to become the “medium” through which the parties will find such a solution. Pursuant to his role the mediator does not (and should not) come to the procedure with the view to favoring one or the other party or disliking one or the other side. He should always keep in mind that it is the parties who will find the solution. The solution, provided that it is not against the law, can be shaped in any form which; even id in the eyes of the mediator it may not appear as the ideal. The mediator is not allowed to criticize it (or even comment on) as his mission was fulfilled the moment the parties reached the agreement.
One of the most known examples demonstrating the advantages of Mediation against Arbitration or any other (alternative to litigation) form of dispute resolution is one of the orange. In this example two persons (to whom the story teller can attribute any kind of relationship, i.e. brothers, spouses, business rivals etc), both want desperately to obtain the one and only batch of oranges available to them. If they choose to resolve their dispute in court, by the end of the dispute no one will, most likely, have any use for the oranges anymore (even if they manage somehow to stay fresh and usable). A Court decision or an Arbitral award will be, in line with the parties claim (i.e. to obtain the oranges) in favor of one of them. One will take the oranges and the other will take nothing.
Through mediation, however, the parties were driven to an unexpected, but mutually favorable, evolution. They discovered that, in fact, there was no conflict of interest. They both wanted the oranges, but in reality, one of them needed the peel to produce marmalade, while the other needed its flesh to produce orange juice.
This result was reached, thanks to the Mediators’ skills, who followed the principles and good practices of mediation and:
- separated the persons from the problem
which allowed him to avoid misunderstandings and, instead, to understand what was the real difference of the parties, and
- aimed at the needs and not the positions of the parties
and, thus, reading between the lines, he understood the real cause of the difference and the real goals of each party,
He, therefore, helped them to realize what was, actually, at stake and, thus, not only to resolve their dispute, but possibly lay the grounds for a potential collaboration.
FAQ
All kinds of disputes related to commercial, civil, labor and family issues. And of course sport related disputes
The mediator, the parties, the parties’ lawyers and any other person (expert, consultant, etc.) agreed upon by the parties.
According to Greek Law, the settlement agreement, which already has the power of a private agreement, becomes enforceable with its filling to the secretary of the Court of First Instance of the place where the mediation was conducted.
The Mediator is freely selected by the parties from the pool of the Accredited Mediators which can be found on the official site of the Ministry of Justice www.diamesolavisi.gov.gr.
A typical mediation day starts with the opening session, during which the Mediator explains the process and states the basic characteristics of mediation and mainly the confidentiality principle.
Following that, each and every party, and of course their lawyers have the opportunity to talk and express their feelings and thoughts on the dispute.
The Mediator will then, in most of the cases, continue with what is called the “private meetings” during which he will explore the dispute with each party individually trying to help them to identify their needs and find the best solution to their dispute. Such meetings may be more than one, and their duration is, usually, no more than thirty minutes each.
The process ends, ideally, with a final joint session during which the final settlement is ratified and signed by the parties and their representatives.
For its speed, efficiency and confidentiality. The settlement agreement may, if the parties so wish, remain a sealed secret.
But mostly, because mediation does far more than simply leading to a negotiated agreement. It, actually, leads to the restoration of the relations of the, until then, “rival” parties.
It never ceases to impress the Mediator to witness the parties leaving behind their “trenches” and “weapons”, getting closer to each other to explore a common ground and eventually reach a mutually accepted solution. And it’s even more fascinated when you realize that this is solely due to mediation. The mere fact that the parties entered a structured process affected them in such a positive way that they managed to overtake the point where they had repeatedly stumbled in the past. And thus, decided to make that little step further from the point they had repeatedly reached and stopped in the past.
The experience in Greece so far, confirms the motto adopted by the Ministry of Justice: “Mediation, a civilized solution”.