Mediation involves negotiations between opposing parties, managed by a third, independent and unbiased party. A prerequisite for the procedure is the absence of any interest of the neutral party to mediation in anything other than reaching a mutual agreement that satisfies the requirements of both parties.
The mediation procedure, as an alternative method of resolving disputes that have arisen between the two parties with the participation of a mediator, is an effective way to resolve disputes and conflicts.
At the same time, the mediation procedure can only be appointed on a voluntary basis and cannot be appointed on a mandatory basis.
With the participation of a mediator (intermediary), the parties to mediation reach a voluntary agreement to make a mutually beneficial decision. Negotiations are held between the parties that contribute to the achievement of this agreement. The task of the mediator in mediation is to identify the key points of the conflict and find the most rational ways to resolve it.
It is important to remember that in the context of mediation, only the parties themselves can make a decision to terminate existing disputes on mutually acceptable terms. The mediator does not have the authority to terminate the dispute, in addition, the mediator cannot independently make decisions in disputes.
Turning to the services of an intermediary in such cases is conditioned by the need for the participation of an unbiased party that will help the parties to the conflict understand each other and conclude a settlement agreement. In addition, in the mediation procedure, the mediator is empowered to assist in the search for satisfactory conditions through which the settlement of the dispute is possible.
Mediation severely limits the rights and obligations of the mediator both during and after the procedure. As part of mediation, the mediator does not take on the function of examining the available evidence, does not assess the legitimacy of individual claims. The mediator only provides sufficient conditions for achieving mutual understanding, identifies and promotes the implementation of effective solutions to the problem that will suit all participants.
Basic principles of mediation
In accordance with the legislation of the Republic of Moldova, there are several obligatory principles of mediation.
– Voluntary participation in mediation. As part of mediation, the conditions of the procedure differ from those that characterize litigation. Both parties enter into the mediation process on a voluntary basis, and the role of the mediator is determined in conditions of free choice. None of the mediation participants has the right to force any party to participate in the procedure. Any party may refuse to participate in mediation without giving a reason. Manifestations of this principle are also in mutual agreement when making certain decisions. At any time during mediation, a party has the right to refuse to continue negotiations. Even before the start of mediation, the mediator without fail specifies the voluntariness of participation.
– Absolute equality between the parties. The concept of mediation excludes the existence of any advantages for either party. The parties have equal rights in the matter of expressing an individual opinion, setting the agenda for negotiations, assessing the acceptability of decisions and conditions before concluding an agreement.
– Neutral position of the mediator. During mediation, the mediator maintains an impartial attitude towards both parties, providing each of them with equal rights to participate in negotiations. If there is a bias towards any of the parties and difficulties in maintaining a neutral position without the possibility of getting rid of emotional assessments, the mediator is removed from further regulation of the mediation procedure.
– Confidentiality of the mediation procedure. Absolutely everything that is discussed or said in the framework of mediation does not go beyond the procedure. The rights and obligations of the mediator do not allow him to take part in court proceedings, acting as a witness. If the case is taken to court, the mediator is not called to testify and cannot disclose information obtained during the mediation procedure. An exception is the availability of special permission from the mediation participant, who was provided with specific information during the procedure.
These principles of mediation are binding on each party and are guaranteed to the participants.
When can mediation resolve a dispute?
The mediation procedure can be used to resolve disputes of different categories and qualifications.
– Arising from offenses of a civil nature.
The mediation procedure is used to resolve disputes related to business, economic and other areas of activity.
– Arising as a result of violation of labor relations between the employer and the former, current and potential employee.
– Arising from family legal relations. Participants in mediation in this case can be spouses, minor and adult children, parents, other family members.
– Arising within the framework of legal relations of a different nature, subject to their classification by the Legislation of Moldova
List of cases in which the use of mediation is not possible:
– The emergence of a collective labor dispute.
– The emergence of disputes within the framework of the legal relations mentioned above, provided that the rights and interests of third parties that do not participate in mediation, or public interests, are affected or likely to be affected.
If the dispute is considered by a court of general jurisdiction or an arbitration court, mediation is not prohibited.
Taking into account the obligation of the judge to assist in the reconciliation of the parties, the recommendation of the mediation procedure at the stage of preparing the case for trial in court is provided for by the current legislation. The judge can and should advise the parties to use mediators, including a mediator, to mediate, and explain the benefits and consequences of doing so.