“YOUR JUSTICE FOR YOUR BUSINESS”
The term ADR is the abbreviation for „Alternative Dispute Resolution”, this acronym defining any process or procedure for resolving conflicts, except for court proceedings. In recent years, this term has been replaced by „Appropriate Dispute Resolution” – appropriate methods of dispute resolution. This change in terminology reflects a growing acceptance and utilization of these methods of dispute resolution, leading to the conclusion that these forms of conflict resolution (ADR) are no longer just an alternative to the court trials.
ediation is an alternative and voluntary way for resolution of conflicts/disputes/disagreements between two or more parties, which means that parties themselves reach a solution through a neutral and impartial professional – the mediator, within proceedings under the sign of confidentiality. Disputes may involve (in terms of parties) states, organizations, communities, individuals.
As an alternative means of dispute resolution, it can be initiated by the very parties to the dispute or by only one of them, then the mediator’s task is to contact all parties to the conflict and establish time and space coordinates to perform the mediation process. Only the parties, according to their own interests and needs, can decide if they want to solve the conflict amicably or not. This does not mean that once the parties are willing to engage in mediation, they must necessarily reach a positive outcome resulted in a settlement. A positive result is also when the mediator finds concrete ways of communication between the parties, given that most disputes ending up in court are based on the severe lack of communication between the parties.
The whole procedure takes place under confidentiality of all information that parties mutually bring, as the law imposes the obligation of secrecy on a mediator. For parties, confidentiality is achieved by inserting some confidentiality clauses in contract agreement or a separate confidentiality agreement signed by the parties involved in mediation, i.e. mediator, parties, lawyers or other persons participating in mediation.
Neutrality means objectivity from the mediator in relation to conflict / object of dispute and, unlike the court, where the judge gives a ruling, meaning the judge decides on the case, the mediator allows the parties to reach themselves a jointly accepted solution, to negotiate on their rights, the mediator becoming involved in their decision only at the extent allowed by law. Impartiality requires the mediator to address a fair, equal treatment to the parties in mediation.
The mediator is the substance of mediation, the liaison between the parties whose dispute is subject to mediation. He/she is the person who takes care to ensure the proper conduct of mediation meeting and takes the parties’ agreement on settling the date and time of the session.
The mediator uses various techniques to communicate with the parties and help them reach an agreement, which is the result of the parties alone. Specificity of mediation is the personal nature of the solution, in that the it always belongs to the parties, not to the mediator. A mediator helps the parties manage their feelings, emotions and priorities so that they can reach a compromise. The compromise represents the middle state created by the parties with the mediator’s help, within the mediation process and universally accepted as the best solution to defuse the dispute and can be carried out without constraints of any kind.
Mediation’s procedure includes a joint meeting of all parties in the presence of the mediator, generically called „joint session”, which may be followed by separate meetings of the parties with the mediator, alternatively referred to as „caucuses”, after which joint sessions may be interleaved with caucuses, until a resolution to mediation.
Mediation can be addressed in other variations, involving separate sessions right from the beginning, which may continue until the close of mediation resulted in a final joint session or not, and one joint session from the beginning to the end.
The mediation settlement is the solely result of the parties involved in the mediation procedure and thus it represents a contract between the parties. The very form of the mediation settlement is an expression of the parties’ capacity to understand and summarize. The mediation settlement may take the form of a handshake which does not materialize in a document. The way to ensure coercion of terms within the Settlement remains effectively and exclusively to the will of the parties: the mediation settlement produces effects only for the signing parties, enforceability against third parties is acquired by putting the agreement in writing, drawn up by a notary, magistrate or civil servant.
Mugur Bogdan Mitroi