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Basic Principles of Mediation

Confidentiality

postupakConfidentiality means that what is said or written during the proceeding of mediation can not be used in later, possible court proceedings. If the parties trusted each other, it would be possible to resolve the dispute themselves, or else the conflict would not exist.

Confidentiality as a principle has three components that are reflected in relations between a party and a mediator, a mediator and a judge (in charge of the matter), and in relation to the public, or social control.

The mediator will come to the core and causes of a conflict only if a party believes and is confident that if what she/he says will not be revealed without her/his permission.

Impartiality and neutrality

The mediator must act impartially and neutrally. He/she should observe all principles of mediation and consider only matters of procedure. He/she should not comment, value judgments, nor give advice or suggesting solutions. Impartiality of a mediator should ensure that the parties accept him/her as a person who is sincerely dedicated to resolving the dispute and who favors both sides in the dispute, seeking solutions that would satisfy both sides in the dispute. The mediator must keep in mind that his/her behavior, attitude, and sometimes the techniques of mediation can bring a sense of sympathy towards one side. When that happens, then the mediation went the wrong way. The mediator can not perform the function if there are circumstances that indicate doubts about his impartiality and objectivity.

Willingness

The mediation procedure can be started only if there is an agreement between the parties. Mediation will not be started without both parties intending to resolve the dispute. In such cases, mediation is misused only as a mean of withholding the court process and keeping the situation at the "status quo".

A mediator needs to know how to explain the advantages of such dispute resolution to the parties, so that they themselves voluntarily agree to be part of such process. The parties should be informed on the possibility to interrupt the mediation process at any stage, if they express need for such.

The principle of willingness applies at all stages of the proceedings. A party or the mediator may at any time withdraw and then transfer the case to the judge. A mediator can interrupt mediation if he/she feels that parties turn away from the solution or that are even more opposed than they were at the start of mediation. The basic principle in the process of mediation is that the mediation procedure should not harm the parties in any way, but to contribute to the resolution of their dispute.

Given that mediation is only a supplement to the court proceedings, it must not prevent a party from exercising the right of access to court and use of judicial protection.

Equality of parties

Although it doesn’t encompass rigid procedural rules, the mediation procedure in order to achieve the goal of mediation is projected in the way that each of the parties has equal rights. Mediation would not be a fair process if a party is allowed to force the other party in conflict into the resolution of the dispute. Such solution can be a form of settlement, but is not in fact a conflict resolution.

The parties in dispute must have an equal opportunity to participate in proceedings, which means that they must have equal opportunity to freely declare their will, and in particular to freely offer conclusion of settlement. Also, the parties must be must be properly represented when it is needed. A party should be encouraged to actively search for a solution of a dispute and in that sense both parties must have a real opportunity and perception that they can equally participate in the proceedings. Ignorant parties are in an unequal position with a party represented by a lawyer and in this case a mediator should point out their unequal positions in the process, and teach them about the need for representation by a qualified person, or about the exercise of other rights.

Independence of mediators

The mediator is independent in the conduct of mediation proceedings, and he/she is not accountable to anyone if there is no settlement. However, the mediator must adhere to professional rules and code of ethics.

There is no basis for mediators to enjoy immunity, if he/she committed a crime, or damage in the mediation process.

Legality

The principle of legality applies in mediation procedure, which means that both parties in dispute and a mediator bound to observe cogent regulations, which are substantive legal requirements. The mediator may withdraw his/her consent to participate in mediation, if parties express will to conclude a settlement that is contrary to public order and cogent rules.

Inexpensiveness

In mediation process a mediator and parties make sure that they spend less time and money to achieve the desired results. That includes maintaining a smaller number of meetings in order to determine disputed facts, not participating experts, or expert participating only in exceptional cases, the savings in payment of court fees and the possibility of pairing more disputes of the same parties in order to resolve them in a single settlement.

Assistance to lay clients

A mediator has an obligation to allow each of the parties in mediation to exercise their rights, in accordance to the law. For this reason, if a party is not able to use his/her right because of unawareness or ignorance, a mediator is required to advice them on how to exercise that right. Of course, a mediator is not a consultant to either party, because that would somehow undermine their position as an impartial third person, and so the assistance to lay clients is related only to referring the parties to seek a lawyer.

Privacy

Unlike court proceedings, mediation is characterized by privacy, i.e. exclusion of the public. All persons involved in the mediation process are required to respect the principle of privacy and to keep it a secret what they learned during the mediation procedure.

Informality

While court proceedings are strictly formal, mediation is informal. Parties choose the rules of procedure and the law regulates only the manner of the proceedings, progress and completion, and the conditions for conducting the mediation by the mediator.

Integrity and fairness

As a general legal principle, the principle of integrity and fairness must be achieved in mediation. Resolving a conflict in an unethical or dishonest manner is not possible, because such method contains incorrigibility and provokes a new conflict between parties. For these reasons, integrity and fairness, as well as ethical principles, must be absolutely respected in mediation proceedings.

Competence of mediator

Recommendations of the Council of Europe, the United Nations UNCITRAL rules and legal scholars point out that mediators have to be professional, respectful and educated for the job and must be able to obtain informal education and feedback on the evaluation of their work.

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