Mediation is a form of Alternative Dispute Resolution, ADR as most commonly known. But what is actually ADR? It is the out of court resolution of a dispute facilitated by a third neutral. The institution grew firstly in the U.S. in the 80s and jumped to UK and to Continental Europe in the 90s. For decades mediation have been tested internationally and has proven its value and it’ s effectiveness. So why not in Greece?
In Greece mediation was officially introduced by Law 3898/2010 which implemented the Mediation Directive 52/2008/EC and thus made its first steps in Greece. As citizens and the State itself, we have obtained a great opportunity to use this valuable tool at hand and we will elaborate on that in the next following lines.
Why to choose mediation?
In comparison to having recourse to courts and starting legal proceedings, mediation can lead to the resolution of a dispute with comparatively minimum cost, expeditiously, conclusively and with unique benefits for all the parties involved, that a court decision (even a flawless one) can never offer.
But let’s start from the beginning and see together which kind of disputes can be resolved through mediation.
Which disputes can go to mediation?
The Greek Law (3898/2010) stipulates that all private law disputes can be resolved through mediation if the party is authorized to dispose of his right. What does this actually mean in simple words?
This practically means that we can go to mediation almost any dispute we have with someone, but a few exceptions. In the following table we can see at a glance a few categories of disputes that can be resolved with recourse to mediation.
- Intellectual Property
- Labour – Workplace
- Real Estate Medical
- Tenant – Landlord
- On-line Disputes
- Banking Sports
- e- Commerce
- Personal Data
Which disputes can not go then to mediation?
Disputes that can not officially go to mediation, at least for the time being, are disputes where one of the involved parties is the State, a public sector authority and tax related disputes. Penal law disputes are also exempted from mediation.
We should stress out at this point that mediation is a choice given to the parties for a great number of private law disputes with very few exceptions, where for example for public policy reasons a court decision is required e.g. in the case that a married couple wants to get a divorce, even if both parties agree, the law obliges them to file for a divorce and wait for the court decision to be published.
Thereafter if we take under consideration the variety of the disputes that can be resolved at low cost, fast, and effectively through mediation, in comparison to the disputes that can not, then we should say that in the question “can I use mediation for my dispute?” the answer can be expected to be answered in the affirmative for the majority of the cases.
What is the mediator’s role?
The mediator is a third neutral, the negotiator we could say, that will help you and the other party to reach a mutually acceptable and beneficial solution. The mediator has to be neutral, impartial and by no means connected to the parties of the dispute by personal or economic ties. This should be the case throughout the mediation procedure from the very beginning to the conclusion of the process, irrespective of the outcome and the resolution or not of the dispute.
A few things you should keep in mind about the mediator:
- He is jointly chosen by the parties, which means that he has to be and will be practically acceptable by both sides.
- He is not your lawyer or legal counsel, nor the other’s side. He is there to facilitate the situation and help you reach an agreement but not to fight for your rights and your interests. That’s why you should have your own lawyer to participate with you in the mediation process. The latter is advised to be well informed and prepared in order to effectively stand for your rights and represent you throughout the procedure.
If you notice, at any point of the mediation process, that the mediator is not acting impartially or shows preference to the other party or seems biased, then you have any right to stop the procedure immediately.
Neutrality, impartiality and independence are the most essential qualifications a mediator should have. Experience and special skills or education, where needed, is also crucial. In startADRâ we emphasize in the qualities that a mediator should have both as a professional and as individual. That’s why you will find useful our help before choosing your mediator.
What are the benefits of mediation?
If we wanted to summarize the benefits of mediation in just four words we would end up in the following: Cost, Time, Procedure, Outcome.
Let’s go through them one by one.
Mediation is a low-cost procedure, especially compared to litigation. As mentioned above, mediation is an out of court procedure. This is translated in less administrative fees, legal expenses and legal fees, which means reduced cost in general. Think about not having to pay for all the above for resolving your dispute. Now calculate how much you actually save!
Usually the judicial process is by nature more time consuming (pre-trial evidence search, trial proceedings, appeal etc.). Mediation provides parties with a powerful tool for a speedy resolution of their dispute. There are no external factors or circumstances to hamper the resolution of your case. It’ all up to your and the other side to come to a mutually acceptable agreement!
Mediation as a procedure is based in two fundamental principles: confidentiality and voluntary participation. Let’ see a few things on these two.
One of the great benefits of mediation is confidentiality. This means in practice that the whole procedure of mediation is conducted in confidentiality, while the mediation agreement (if reached) remains confidential as well. All the involved parties, the mediator included and the participated lawyers, have the obligation to keep the procedure confidential and avoid disclosing any information, even the fact that the dispute was submitted to mediation for resolution.
We should also emphasize on the fact that confidentiality is kept and protection therefore is provided even in the case that the mediation procedure ends with no success. Specifically, all the involved parties in the mediation procedure (the mediator, the parties, lawyers, witnesses, experts etc.), are prohibited (but very few exceptions) from testifying as witnesses before court in case the dispute goes to trial.
Therefore, your private life is protected along with your personal data. The same goes for all the involved parties and for all the parties that are directly or indirectly connected with the dispute as well.
b. Voluntary participation
Mediation is a voluntary out of court procedure where the parties attempt to resolve their dispute in an amicable fashion. In Greece mediation remains (contrary to some other counties) a non-compulsory alternative dispute resolution procedure for all the disputes that is provided. It is on your own free will to opt for mediation in order to resolve your dispute, the exact time you will choose to start the procedure and how mediation will take place (this includes the appointment of the mediator on which we will elaborate further on).
In case you have started the mediation procedure you have at any stage the right to withdraw from the procedure. Nevertheless, you should always bear in mind that everything that have been discussed are and will remain confidential.
Mediation may follow the structure prescribed by the Greek Mediation Act, Law 3898/2010 or may take place as a less formal procedure. What does that actually mean?
In Greece the Greek Mediation Act provides that the parties must have legal representation during the mediation procedure. In this case the parties enjoy the benefits provided by Law 3898/2010 and especially with regards to the enforceability of the mediation agreement. This means that the mediation agreement is legally binding for the parties as if it was a court decision. Practically you will have your dispute resolved avoiding the time consuming and costly road of the judicial proceedings.
Nevertheless, even in the case that you will not follow the typical structure of the mediation procedure (id. by being legally represented), you do not have to worry about the binding effect of the mediation agreement.
Mediation as a procedure is based on the parties free will to resolve their dispute without going to court. It is a voluntary procedure which is facilitated by a third neutral person, the mediator. The mediation agreement in which you may reach with the mediator’s guidance may not be enforceable as a court judgement, thus it is more than a contractual agreement. It is an agreement that have been attained through a structured procedure facilitated by a third person trained and qualified in dispute resolution.
The mediation agreement will be the result of your own choice and not a compromise. Even in the case of court judgements the decision is imposed on the parties and there is a great chance to disgruntle even the winning party. Practice shows that in most cases a mediation agreement will be voluntarily applied as the parties tend to honor and respect their agreements.
The steps you should follow if you want to resolve your dispute through mediation.
1. Be properly informed:
Before entering a mediation procedure, you should seek for professional advise that will provide you with all the necessary information you need to know, such as the legal issues related to mediation and the procedural issues as well. Make sure that you will leave the information session with no questions. There is no insignificant question to be asked. If you are fully aware of what actually mediation is, the benefits of it and how the procedure works, then you will have already taken the first step to the right direction. At startADR® you will find all the necessary information you have to know about mediation!
2. Choose the right mediator:
Having made the choice to follow the mediation path the next step is to carefully select the mediator that is suitable for the resolution of your dispute. Choosing the right mediator is crucial and may determine even the outcome of the mediation procedure as a skillful mediator definitely increases your chances to reach to a successful settlement. So, it would not be too much to say that the mediator is the linchpin of mediation. At startADR® we will guide you through the search for the mediator that fits best for the resolution of your dispute. A mediator’s experience, skills and expertise is proven to be the key for a successful mediation!
3. The agreement to mediate:
Before entering mediation procedure make sure you have signed the agreement to mediate your dispute. This agreement is signed by all the parties that are going to take part in the mediation including legal counsel, experts, witnesses and of course the mediator. The agreement to go to mediation is not just a piece of paper rather an essential agreement along with the mediation agreement. This means that it should be drafted meticulously by an expert. StartADR® helps you draft the agreement to mediate or even review such agreements in order to conduce to a smooth-running mediation procedure.
4. Mediation procedure:
You are standing at the heart of the mediation procedure. After having worked out all the necessary details such as the selection of your mediator and perhaps your legal counsel you are ready to mediate your dispute and try reach an agreement. If you want to be fully prepared for mediation and give yourself more chances to reach an agreement, then you are at the right place. StartADR® is offering you a unique hands-on experience on mediation by organizing for you a mediation simulation. Do not miss the chance to familiarize yourself with an institution that may come truly handy one day!
5. The mediation agreement:
The mediation agreement is the fruit of a successful mediation. The final agreement that you and the other party have reached with the help of your mediator is incorporated into a legal document. Usually the mediation agreement is drafted by the parties’ lawyers. At startADR® we undertake to review the final agreement in terms of validity (public policy test), enforceability, wording and typing errors that may become a future point of contention. This way you have nothing to worry about!