Mediation is a negotiation process in which the parties involved in a conflict attempt to resolve it themselves, with the assistance of an impartial third party called a mediator, who acts without decision-making authority.
What is the mediator’s role?
The mediator is solely the facilitator of the session; they gather concerns, translate moods, explain positions, and ultimately help the participants in the process find a solution devised by the parties themselves that is satisfactory for both. If this does not happen, the mediator assists in narrowing down the conflict to then refer it to the judicial system.
The mediator must be impartial, aiding the parties in conflict management or resolution and decision-making without taking sides.
In summary, the main functions of the mediator include:
- Channelling tension and aggressiveness between the parties.
- Maintaining active listening.
- Allowing the parties to explain themselves.
- Facilitating communication between the parties.
- Acknowledging the emotions of both parties.
- Assisting in using imagination to approximate positions.
- Building trust.
Is mediation mandatory?
No. Mediation is voluntary, and no one is obligated to remain in the mediation process or reach an agreement. Participants can withdraw from the process at any time. One characteristic of mediation is the possibility to leave the process at any time. However, if it succeeds, the resolution of the conflict is agreed upon by the parties themselves, with the mediator assisting them. If the mediation process is abandoned and the conflict persists, the only recourse for resolution is to go to court.
Can information revealed in mediation be used in a subsequent legal proceeding?
No. One characteristic of mediation is that information disclosed during the mediation process cannot be used in any court by the parties. The mediator cannot be called to testify as a witness for any party, nor can they disclose information arising during mediation.
How does the mediation process work?
Firstly, an informational session is conducted where the mediator informs the parties about the estimated number of sessions needed for the mediation of that specific case. In this session, the mediator answers all questions that the parties may have about mediation and informs them about the entire process.
Subsequently, mediation sessions take place.
Finally, the parties may reach an agreement. When agreements are reached, the mediator ensures that all parties are fully aware of the content. Agreements should reflect the points the parties have successfully negotiated within the limits of their competencies. Upon request, the mediator informs the parties about how the agreement can be formalized and the procedures for its enforcement. In no case can the mediator give legal form to the agreement.