Business Mediation is a form of crisis management with the help of a neutral third party, the mediator. It is a highly efficient instrument that allows companies and individuals to resolve disputes out of court. Business Mediation follows a confidential and structured process in which two or more parties autonomously strive to achieve an amicable resolution that is responsive to their needs and acceptable for all sides. In contrast to a judge, the mediator does not decide the issues for the parties, and does not evaluate the rights and wrongs of the case, but facilitates the conversation and therefore sets a new basis for negotiation. The mediator has no decision-making power, so control over the outcome of the case stays with the parties. And, in contrast to a lawsuit, it is principally voluntary.
When it comes to a dispute, the disputants often blame each other for what happened in the past and forget to focus on the future. And when it comes to litigation, a judge will spend most of his time considering and judging the past. During the Mediation process you only take one look back into the past to get to the core of the dispute and to understand why the dispute arose. After that step the disputants start to think about the way forward. It is crucial for the success of Mediation to take enough time to explore possible future-oriented solutions and to identify the needs of the parties. Bearing in mind the needs of the parties, it is easier to explore sustainable solutions that suit the mutual interests of all parties.
Mediation is a voluntary alternative dispute resolution and all parties have to agree to conduct Mediation. The voluntary element ensures that the parties can terminate Mediation at any time. The mediator will only terminate when he or she is of the opinion that autonomous communication and thus a settlement between the parties is not to be anticipated.
As defined in Article 3 of the Mediation Directive, Mediation is a process, in which the parties attempt to reach an agreement by themselves on a voluntary basis, whereby Mediation may be ordered by a court or prescribed by the law of a Member State. So in some European Member States Mediation might be obligatory for certain matters (see Italy and Rome).
A Mediation clause might destine, that the parties in dispute have to conduct Mediation, before starting any legal action.
All persons involved in conducting Mediation will be subject to a duty of confidentiality. The Mediation process is without prejudice, meaning that things said in the meeting cannot be used later in court or for any another legal action and the parties cannot present the mediator as a witness.
For the success of Mediation, it is important to get to the core of the dispute, meaning full disclosure. And that requires confidentiality.