What is mediation?
As defined by law, mediation is “the structured process during which two or more conflict parties voluntarily try to reach an agreement on how to solve a dispute by themselves with the help of an independent, impartial, and competent mediator”.
The mediation procedure applies to national as well as to cross-border conflicts.
The mediator’s role as third party is to help the conflict parties to reach an agreement by themselves, bearing in mind that they are in full knowledge of their situation. As the special technique of mediation procedure is applied, the agreement respects each party’s needs. Furthermore, mediation is a communication technique which can help to make conflict prevention in a company much more effective.
The mediator is neither judge nor arbitrator and is strictly bound to respect the mediation process’s confidentiality. In particular, it means that he may not make any facts public which he became aware of in his role as mediator.
In order for the mediation to be successful, it requires all parties’ common willingness to search for an amicable solution for their differences in good faith. The parties remain owner of their conflict as well as their (contractual) relationship. At any time, they can ask the mediator to support them by applying his conflict resolution technique.
Mediation is an efficient, quick, and compared to a classic court proceeding and even to an arbitration relatively cost-effective method to resolve a conflict. It is of special note that mediation guarantees confidentiality, especially in case of failure.
Following a study done by the European Parliament in 2014, using mediation
The law guarantees confidentiality of mediation.
It also ensures that the parties’ respective rights do not get time-barred during the mediation procedure.
In addition, the reached agreement can be homologated. Therewith, it has the same value as an enforceable judgment.
Mediation can be initiated outside of or during a proceeding.
At the beginning of a mediation, the mediator and the parties sign an agreement called mediation agreement. By doing so, the parties agree to resolve their dispute by means of mediation in compliance with the Mediation Rules of the Centre for Civil and Commercial Mediation. The parties declare to respect these rules.
In the performance of his mission, the mediator helps the parties to find a negotiated solution for their dispute. The mediation duration may not exceed three months starting from the day when the mediation agreement is signed. In any case, the duration can be extended based on all parties' joint agreement. At each moment the parties, including the mediator, can stop the mediation at their discretion.
Once the parties come to an agreement, this so-called mediation settlement agreement describes in detail which actions have to be taken by each party. It is signed by all parties.
Example of a mediation agreement
Mediationsvereinbarung.pdf
CMCC Mediation Rules
CMCC Regeln.pdf
CMCC information leaflet
CMCC Broschüre
