Petar Petrić, Attorney at Law, Petrić & Kajić Law Firm LLC, writes in his regular column this time about Litigation or mediation? He explains all the details of this legal issue to our readers.
How to resolve a dispute – in court or through mediation
When assessing and preparing the strategy on how to resolve a dispute, in court or through mediation, your lawyers play the key role. From the initial contact with your party, conducting an assessment of the risk of initiating and conducting a dispute and assessing the risk of initiating and participating in the mediation process, familiarizing the client with advantages and disadvantages of both ways of resolving the dispute, establishing contact with the other party or their lawyer, preparing your client, representing or consulting your party in the proceedings, until the resolution of the dispute with which the party is satisfied, requires full engagement and special skills and knowledge of your attorney or lawyer.
What is mediation and how is the process carried out
Mediation is a procedure where parties look for their own solution to a dispute or conflict through negotiations, with the assistance of a third professional – mediator.
The mediation process consists of several stages, which are:
- Introductory remarks about the mediation process – it is the task of the selected mediator to meet the parties who have agreed to conduct the mediation process, to ask the parties to agree to the rules of conduct in the mediation process.
- Determining the subject of the dispute and collecting information on the dispute – the parties and their attorneys present their view of the dispute, questions are asked, the attorneys have the opportunity to present their legal view of the dispute and potential issues.
- Determining the possibility of dispute resolution – in conversation with the parties the mediator determines their true interests related to the dispute, discusses the best alternatives for resolving the dispute (BATNA and WATNA) and, if necessary, holds separate meetings with each of the parties in the dispute.
- Negotiation – the mediator encourages the parties to assess the possibility of success in the dispute, to review all potential dispute resolution options as well as the future of their dispute if they do not reach an agreement with the other party.
- Reaching an agreement – everything that was agreed between the parties in mediation is summarized and the text of the settlement is drawn up and signed.
If a party has a lawyer, then the lawyer can advise them in all stages of the mediation process, starting from the selection of mediator to reaching an agreement and making a deal.
When is mediation carried out
Mediation can be conducted:
- before the start of court proceedings, and
- when the parties are already in court.
Where can the mediation be conducted
- Before a registered mediator entered in the registry kept by the Ministry of Justice and Administration
- Out of court – in institutions for mediation, e.g. Mediation Centre of the Croatian Mediation Association, Mediation Centre of HGK, Mediation Centre of the Croatian Bar Association, of the Croatian Chamber of Trades and Crafts, Mediation Centre of the Croatian Insurance Bureau, etc. (out-of-court mediation)
- Before the court – mediation service of the court which the dispute is being heard (court mediation)
Selection of a mediator is one of the key elements for success of the mediation process.
Types of dispute for which the mediation is most appropriate
Mediation is appropriate for almost all types of dispute because the type of dispute is not relevant for success of the mediation, but the willingness of the opposing parties to resolve the dispute.
Mediation produces equally good results in disputes between entrepreneurs, business partners, disputes between family members, neighbours, in labour disputes, but also in all other types of dispute.
Choosing a mediator
Apart from the willingness of the parties to engage in mediation, the quality of the mediator is also important for the success of mediation.
Mediators are required to have experience in working with parties in conflict situations, to have knowledge of court proceedings and the ability to assess how court proceedings can affect the parties and their mutual conflict.
Mediators are required to attend additional courses every year, i.e. to improve their skills and quality, communication and negotiation techniques and, most importantly, acceptance by the parties.
Due to the aforementioned required qualities, the most represented mediators are lawyers, mostly attorneys, judges, former judges.
However, in addition to lawyers, a significant number of people from other professions are also involved in the work of mediators, especially in cases where the sensitivity of the disputed issues (family disputes) or the complexity and specificity of the area of dispute, which is not primarily of a legal nature (construction disputes, medical errors, complex financial disputes, etc.) requires special knowledge, which lawyers, of course, do not possess.
Thus, accountants, engineers, architects, social workers, psychologists, experts in labor relations issues, doctors, consultants, pedagogues, etc. can often be mediators.
What is the main difference between mediation and litigation
The main difference between mediation and a trial is that in the mediation process, the parties themselves reach an agreement with the help of a mediator, and this agreement is a result of their free will, unlike a court dispute where the judge makes a binding decision that is not the result of the will of the parties and is beyond their control.
In trial, the parties entrust the decision on the resolution of the dispute to a third person – the judge, and in mediation, the parties make the decision on the dispute themselves, with the help of a third person – a mediator, who helps them find a solution to the dispute, but does not decide what that solution is.
Mediation is conducted in one or more short or longer meetings, and the parties, their lawyers who are their advisers and the mediator participate in the meeting. Often, a complex and lengthy court case ends in one day in a mediation process or after just a few meetings focused on searching and finding a solution through mutual open communication between decision-makers.