Mediation is an increasingly attractive alternative to legal actions and judgments. In mediation, a neutral third party, called a mediator, will help the parties resolve a dispute, so that they can set aside the case and avoid legal proceedings.
This process can be suitable for all commercial and business legal case types, and the aim is to achieve the best possible result for the parties together. But what does out-of-court mediation actually entail?
This is the first article in a series of three where you get an insight into what mediation actually is.
Out-of-court: The fact that the mediation is out-of-court distinguishes it from judicial mediation - that is, mediation carried out under the auspices of the court after an action has been brought and a defence reply has been submitted. It is often a great advantage for the parties to resolve the dispute before the case is sent to court. Court proceedings can be very damaging to the relationship between the parties. Out-of-court mediation is therefore particularly useful in ongoing business relationships. The fact that the mediation takes place at an earlier stage of the case can also result in time and cost savings. Some also choose out-of-court mediation rather than judicial mediation or court proceedings due to discretion, as third parties can request access to some of the court’s documents, such as court mediation minutes, final statements and judgments.
The mediator: The mediator often has special expertise and experience in mediation and, most often, also expertise in the subject area the dispute concerns. The parties are free to choose who will act as mediator, or agree on a procedure for choosing a mediator, and they can also choose to use several mediators. The crucial thing is to find a mediator with the right expertise, who is independent and that both parties trust.
Mediation can produce results that are better for both parties than what the court can determine. A mediation can end up with both parties being winners.
Alf Johan Knag, partner at SANDS
The mediation meeting: The parties and the mediator agree on the time, place and framework for the mediation. Often, the mediation meeting starts with a joint meeting, followed by separate special meetings between each of the parties and the mediator. In the special meetings, the parties can speak confidentially with the mediator and have control over what information is to be shared with the other party. An experienced mediator will assess the parties’ needs and propose a procedure that is adapted to the parties and the dispute.
Unlike in legal proceedings, a mediator will often want active participation from the parties in the meetings, and the tone can often be more informal than in a court mediation or legal proceedings.
The result: The purpose of out-of-court mediation is to reach the best possible solution for the parties. Unlike in legal proceedings, the mediator will have the opportunity to set aside details and legal reasons, in order to pay more attention to the needs of the parties.
The parties can at any time end or withdraw from the mediation unless otherwise agreed, and if the matter is not settled, the parties can still choose to take legal action.
If you want to read more about the benefits of mediation, read Part 2: What are the benefits of mediation?
Our certified mediators can help you seek a solution through mediation. Contact us to get more information.
