What is mediation?
Mediation is a kind of alternative dispute resolution where parties invite a third party – a mediator to mediate the solution to their situation. The mediator does not make decisions, does not offer solutions, does not judge. The mediator helps you find a solution which is ideal for all participants. Show more
Mediation in our country is very young. Therefore it is not widely-known. The act of mediation (202/2012) has been effective since September 2012. In other European countries, mediation has been playing a significant role as a part of business and employment contracts. In many countries, it also helps to solve family-related issues.
Mediation conforms to three principles; Confidentiality, optionality and neutrality.
The rule of confidentiality includes any information which is told to the mediator in association with mediation. The mediator is pledged to secrecy by law. This duty of confidentiality lasts for the duration of the mediator’s life unless the parties divest them of it.
During the process, the mediator might need to speak to the parties separately. In this case also, he or she must observe the duty of confidentiality and information gained during so called “caucus” can be shared with the other party solely under the permission of the party who provided this information.
Optionality means, that the party can decide on their own whether they enter, remain, leave before the end of the process or whether they conclude an agreement. The process of mediation can be finished at any time.
The mediator remains neutral under all circumstances. They do not judge or decide who is right and who is not. They help the parties to search their needs and find mutual understanding.
Who is mediator?
The profession of the mediator in the Czech Republic is as young as mediation itself. Therefore it has not been used massively yet. The department of justice publishes the list of registered mediators, where you can find the names of all mediators who have passed the state exam in mediation. Simultaneously they are bound by the European Mediator Ethical Code.
Mediation or a litigation?
Mediation has a lot of undisputable advantages. Above all, the decision remains fully in hands of the parties. Nobody decides for you or instead of you. All proposals come from you and you are also the only one who decides what under the conditions gives the best solution for you. The mediator only assists you to find the best both for you and for the other party. This brings a great advantage – when accepting the solution which you have proposed it is much more probable, that the agreement will be kept in the future. Moreover, if you make an agreement with somebody, it is highly probable, that your relations will continue. Show more
Mediation is a very successful way of resolving disputes. On average, 65% of the disputes handled by mediation reach an agreement.
The last but not least advantage is the efficiency of mediation. It is faster and less financially challenging than litigation.
Can mediation affect a litigation which has already been started?
If you decide to deal with your situation using the advantages of mediation, your right to suit is not affected in any way. You can even begin the process during a litigation that has already started. In that case, all the proceedings are stopped (but not cancelled) with the exception of pure precautions, until both parties reach an agreement or until one party or another or the mediator him/herself claims the mediation over, within three months at most. Show more
At the process of mediation, the lawyers of the parties can be present under the condition of general agreement of the parties. The lawyers can also address the mediator if the party deputes them to do so.
Who is mediation for?
Mediation is suitable for all disputes of non-criminal law. It is used mainly in family-related issues where it helps a couple during the divorce process and negotiations on child-care (husband vs wife, partner vs partner). Show more
Mediation is widely used by communities when dealing with neighbour disputes (neighbour vs neighbour, national minority vs national majority).
Mediation is also convenient when handling supplier-customer relations (customer vs seller, client vs manufacturer) and it is also frequently used in the working environment (employer vs employee, employee vs employee) such as situations, when an employee cannot agree with their employer on severance pay. For example, the mediator is also often invited to assist conflicts between key employees.
Mediation is popular with business-related issues (partner vs partner). Companies often prefer to deal with disputes behind closed doors in privacy without negative publicity and it also provides them space for their own creative solutions. The results of the negotiations remain fully under their control. It is no exception that mediation is confirmed in the cooperation agreement as the first and main way of dealing with potential disputes arising from the contract.
In the world, mediation is common for example when negotiating issues such as patient vs medical staff.
In the Czech Republic, mediation was introduced mainly in relation to cross-border disputes, when the differences in different legal systems had caused significant difficulties in common trials. It has proved to be much more useful and logical when the parties make an agreement themselves without the burden of legal regulations nevertheless under the rule of law.
What are the advantages of mediation?
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- Time – Mediation is much more flexible than trials. The first session usually takes three hours. The complete length of the mediation depends on the type of dispute and the will of the parties to reach an agreement. However, the process of mediation takes 16 hours on average.
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- Finance – Mediation is cheaper than a standard trial. Since mediation is usually a faster process than litigation it is also much less expensive. In most cases, the parties share the costs equally. Nevertheless, the agreement on sharing the costs may differ individually. The price for the mediator’s services is negotiable. If the mediation is ordered by the court and the parties do not agree otherwise, the fee is regulated by the government to 400,- Kč for each entered hour to the extent of three hours at most. (In the case that the participants have been freed from the court fees, this sum is paid by the government itself.) If the court only recommends the mediation process, the amount of fee for the first session is not specified.
- If the parties receive the court decision, i. e. a third party’s decision, they must observe it regardless of their own feelings. From the point of their relations, mediation gives hope, that after their own decision and concluding a mediation agreement made of their own free will, the relations of the parties will be damaged only marginally and the agreement will be kept in the future.
- Compared to a public trial, the process of mediation is very confidential. All takes place between the parties and their mediator who is by law tied to secrecy for all his or her life. Nobody, apart from the mediator chosen by you, witnesses your emotions, possible failures or potential bursts of anger. Your mediator is there for you to understand your feelings and to assist you and help you find what is important for you.
