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Mediation as a dispute settlement process


Mediation as a dispute settlement process

Modern society and law know two legal methods of dispute settlement - judicial and extrajudicial (or alternative).

The first one is the disputes settlement in the form of lawsuits and appeals on the court. Judges must, in the context of parties claims (bulletins), through accurate knowledge and involvement in legal norms, settle disputes filed by advocates (lawyers) or legal entities. Usually, the solution to the litigation is terminated by a judgment.

However, arbitration and mediation are known as out-of-court or alternative dispute resolution.

In arbitrations, each of the parties usually elects their arbitrator (arbitrator in disputes), who is presided over by the chairman of the arbitration tribunal. The arbitrators give their arguments to each of the parties. On the basis of the consideration of arguments, the arbitral tribunal issues its decision, but it is not bound to the legal norms as a court in decision-making - arbitrators decide on the basis of moral norms, legal customs, international agreements, etc.

Mediation (reconciliation, consilation, etc.) is a method of settling disputes in which there is neither a judge nor an arbitrator. The backside parties arbitrarily choose a completely impartial and independent mediator who, through the conversation, tries to help them in a neutral way to resolve their dispute.

We can claim that mediation is as old as humanity and that it has played an important role in resolving conflicts throughout the development of human society (although it has not been termed »mediation«). People always "liked to argue". For Slovenians, for example, has always been customary to file lawsuts for every little thing, while in some other cultures, coming to the court means a disgraceful act and a sign of poor bargaining ability. Certain forms of "mediation" were carried out in a not too distant past, when local communities operated t. i. "Settlement saints" composed of morally reputable and trusted community representatives.

Mediation as a professionally managed procedure for peaceful conflict resolution, carried out by specially trained experts (lawyers, psychologists, social workers, etc.), was enacted in 2008 with The Law on Mediation in Civil and Commercial Matters, but the provisions of this law are rather loose, and the definition of "in civil and commercial matters" is too narrow. In the Republic of Slovenia, mediation in most of the litigation is a recommended or even obligatory pre-trial procedure, which is offered to the parties as the first option by the court, but is in practice limited by considerable mistrust of the parties and less favorable conditions for its implementation. Therefore, in many litigations, mediation does not occur at all. This is undoubtedly also due to poor knowledge of its advantages, about which the general public is under-educated.

Mediation in Slovenia is carried out as:

- court-mediated mediation directly in the courts,

- court-related program (if the mediator is a third party as an outsourcer),

- completely independent activity performed by trained contractors (individuals or organizations ...).

 

The role of mediation in the court is that the parties settle each other on the issue in dispute. It focuses solely on the issue and attempts (unfortunately, as quickly as possible) to resolve the dispute "on a quiet path" so that each of the parties gets something.

Alternative non-judicial conflict resolutions developed mainly due to the weaknesses arising in court proceedings.

The disadvantages of resolving disputes through judicial proceedings are in particular that the judicial procedure is formalistic, less personal, and the conclusion of the dispute resolution must always be within the limits of the lawsuit. The procedure itself focuses solely on the conclusion of the disputed relationship with the issuance of a judgment. This often does not mean the actual solution to the conflicting relationship, and the dispute frequently continues to intensify. Judicial procedures are also more prolonged (which also means emotional burdens for clients for a long time) and much more expensive.

 

The advantage of mediation carried out outside the courts is mainly that in the procedure usually the solution of the dispute is faster (usually there are some meetings, sometimes even one or two), and effective, affordable, while the participants, which together influence the content of the solution, are more satisfied, since the essence of mediation is to achieve a conclusion in which all the participants are won in a way to adopt a solution that is most acceptable and satisfactory for all participants. In mediation, the dispute is resolved according to the principle of "solving the problem" and not by the principle of "competition and opposition", as is typical of judicial resolution.

Mediation is not competition for the court! Its important role is to relieve the courts and judges, who can, as a result, perform their tasks better and introduce a culture of conflict resolution through dialogue. The agreement signed by participants after the mediation procedure is not directly enforceable, so it is, of course, recommended that the participants conclude it in the form of a directly enforceable notarial record.

In the mediation process, the parties have the opportunity to express their feelings, face them and formulate a solution that is beneficial for both of them and which often leads to a "cathartic" effect. The judgment should also have a cathartic effect for both parties. However, in a "conflict" usually one party wins, and yet she is often not happy with the "outcome". Mediation goal is so called »win-win« agreement (without loser and winner), which is satisfactory for both sides and which produces long-term results.

Although mediation as a form of dispute settlement was carried out even before the development of modern law, many consider it as a modern civilization achievement in the field of conflict resolution.

 

An important option, which should again be emphasized, is that mediations can also be conducted outside the courts with specially trained mediators or organizations.

Agency SPIN, d. o. o. offers the possibility of mediation carried out by staff with mediator training. We offer simple, professional and affordable access to peaceful conflict resolution. We want people to be so aware that they can propose mediation to the parties or decide for themselves, even before they decide to settle the dispute through the court. By doing this, spores in society will be intercepted as soon as they appear, and they are trying to resolve them as soon as possible.

Interested parties can contact us through the tel. nr. +386 (0)70 777 704 or via e-mail adress: agencijaspin.pravnik@gmail.com and we will try to resolve the conflicts and contribute to improving relations in all areas that limit your professional and / or private life.


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