The Definition of Mediation

The legal definition: "mediation" refers to a process in which parties voluntarily, with the help of a neutral third party (mediator), try to reach a peaceful resolution of a dispute arising out of or in relation to a contractual or other legal relationship, regardless of whether the term used in this procedure is mediation, conciliation, reconciliation, mediation in a dispute or any other similar expression (Paragraph 1 of Article 2 of the Mediation in Civil and Commercial Matters Act, Official Gazette of the Republic of Slovenia, no. 56/2008)

Mediation is an informal, non-binding, confidential and structured procedure in which a neutral third party (mediator) tries to help parties find a mutually agreed solution to their (legal) dispute through discussions, negotiations and special mediation techniques.

Mediation primarily differs from legal proceedings or an arbitration procedure in the fact that it does not constitute a trial. The mediator cannot adopt a binding resolution, but rather helps the clients reach an agreement that settles the dispute and redefines mutual rights and obligations, especially in terms of future cooperation.

Stages of Mediation

The initial stage: during this stage, the parties and the mediator sign an agreement – the mediation agreement. In the opening address (mediator's introduction), the mediator explains to the parties what mediation is, points out the principles of the mediation process, verifies the authorizations, clarifies the essential role of the mediator, clarifies the procedural rules and the possibility of separate meetings. Before the beginning of the next stage, the mediator asks the parties whether they are willing to cooperate (renewal of consents). The preliminary meeting is an opportunity for the mediator to examine whether the information he or she has acquired in preparation for the mediation is correct, and what constitutes the framework of the proceedings. Following the parties' opening remarks, the mediator should be able to comprehend the subject of the dispute and to what extent the issues need to be explored. Following the first meeting, the mediator should already know whether the parties have any other disputes, whether they want to resolve them together and what their requirements are. The mediator will find out more about the background of the disputes in further meetings, when the parties make their positions known and, in particular, when talking to the parties in separate meetings.

The exploratory stage: during this stage, the positions of the parties and their accounts of what happened are presented. Typically, there are big differences in their points of view and the subject of the dispute. The primary objective of the mediator is to establish communication between the parties. In the beginning, the parties are bound to tackle strong emotions and feel upset and behave accordingly. With the help of mediation techniques, the mediator should distinguish between the clients themselves and their issues, otherwise it will not be possible to establish effective communication. This is followed by the first part of the exploratory stage – establishing the facts, and then the second part of the exploratory stage – looking into the parties' interests, wishes, needs, worries and fears.

The exploratory stage should therefore culminate in a list of the interests of both parties; then, based on both lists, a joint list of common interests or, as the case may be, a list of different yet compatible interests of both parties may be drawn up.

Once the exploratory stage is completed, the mediation process comes to a tipping point. Before continuing the process, three questions must be answered:

  • Are all the facts known?
  • Are all the interests known?
  • Are the parties ready to recognize each other as negotiators?

If the answers to the questions above are affirmative, then it is time to commence with the negotiation stage.

The negotiation stage: during the first part, it is necessary to find possible solutions to the matter or dispute. The proposals regarding the possibilities are considered as joint options, regardless of which party proposes a particular option. A list of possible solutions is created. Based on this list, a selection of possible solutions is carried out in the next part of the negotiations. This part has to do with finding answers to questions regarding the wishes of both parties and what one party can offer the other one in order to advance its interest.

The final stage of the mediation process is the one where a draft agreement and the final text are drawn up and signed by the parties if an agreement between the parties has been reached.

The Advantages of Mediation

  • A Swift Resolution of Disputes

The advantage of mediation lies in the fact that it is a faster process than a court procedure. The resolution of a dispute may even be possible at the very first mediation meeting.