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During Mediation all participants (the Mediator, the parties and lawyers) have to work together to achieve a sustainable solution.
Mediation is a form of assisted negotiation and the mediator is your assistant. Mediators are skilled in unlocking negotiation that has become deadlocked and in keeping everyone focused on finding a solution. The Mediator is neutral, meaning that he will not take sides and has no decision-making power. His role is not to control the outcome, but to guide the parties through Mediation. He will inform the parties about the structure of the Mediation process and anything else they need to know. He will ensure that the negotiations are conducted honestly and lead the parties to a win-win situation. The mediator’s aim is to achieve mutual communication and to identify the needs and interests of the parties. To engage the disputants in constructive discussion and creative solution elaboration, he uses appropriate communication techniques and visual aids. The mediator does not give legal advice, but will encourage the parties to seek it if there are juridical issues to the case.
As a party you should be open- and settlement-minded. The parties have to accept the rules of collaboration and communication, meaning to be open-minded about other ideas that come up during Mediation (do not think that your way is the only way). By withholding important information, a disputant may endanger the success of the process; so honest communication is encouraged during the Mediation process. For preparation you should gather all information and documents you will need to resolve all issues. In order to save time, please make sure that people with decision-makig power participate in Mediation or are available during Mediation sessions.
Even though it is not mandatory to have a lawyer accompany you to Mediation sessions, it is recommended for most B2B conflicts. Particularly if the case is highly litigious, lawyers should review documents handed in from the other party and the proposed settlement terms.
A lawyer can give legal advice during a mediation session or be conciliatory from the outset. Even during a Mediation session your lawyer can advise you privately. If your lawyer is conciliatory from the outset, the mediator will ensure that your lawyer will have enough time to review all documents in each stage of the process. In a Business Mediation usually each party is referred to their own lawyer to review drafts and agreements before they are signed.
In contrast to a legal process, the lawyer’s role is less active and vocal. The parties are the main actors who have to find a solution for their business discrepancies. After the parties have found a solution, the lawyer can help to prove if the settlement agreement is in accordance with the law and ensure that the parties have not overlooked a juridical point.
The mediator does not adjudicate and does not give legal advice. But even if you decide to join a Mediation session without a lawyer, the mediator will encourage you to seek legal advice, whenever you feel it is appropriate.