Obligatory Mediation Law in Israel

Mediation Process- The Efficient and Cost-Effective Way to Resolve Disputes 

The mediation process  can be very helpful in any number of areas. A person’s life is filled with conflicts due to various factors, such as disputes at work, disputes with partners, neighbors, etcetera. It is neither desirable nor possible to resolve every such conflict through legal proceedings. However, despite its name, the Obligatory Mediation law does not in fact mandate mediation without the consent of the parties – only heavily suggest undergoing mediation before a divorce. 

Handling disputes in court takes a heavy emotional and financial toll. Divorce disputes in particular can severely impact the children who experience the rift between their parents, an effect that can influence their lives for many years. Turning to mediation is the best and most efficient way to resolve these conflicts. 

Mediation is regulated by Section 79C of the Courts Law [Consolidated Version], 1984 (below: “the Law”) and the Courts (Mediation) Regulations, 1993 (below: “the Regulations”).

Mediation is a dispute resolution process that avoids various harms associated with legal proceedings, often preserving and improving relationships between conflicting parties. Mediation is conducted by a certified mediator whose role is to bring the parties to agreements without having the authority to make binding decisions. The entire process is voluntary, and the parties reach agreements of their own free will. The mediator accompanies the parties throughout the mediation and, if necessary, until the signing of an agreement arranged between the parties, which is drafted by the mediator and signed only with the consent and willingness of the parties. The agreement can be approved in court to give it the effect of a judgment.

Characteristics of the Mediation Process

Mediation has various features that distinguish it from other procedures (arbitration, litigation):

Willingness of the Parties

Entering into mediation, conducting it, and the terms of the agreement that conclude the dispute are always subject to the will of the parties. Mediation is entirely based on the parties’ willingness, making them the exclusive decision-makers at each different stage.

At the start of mediation, the parties sign a “Mediation Participation Agreement,” which outlines the “rules of the game” by which the mediation will be conducted.

Mediator’s Facilitation 

The parties aim to reach an agreement that will end the dispute, as they are unable to do so on their own for various reasons.

The mediator’s role is to pave the way for the parties to sit together and reach agreements. The mediator has various methods to achieve this: joint meetings or separate meetings with each party (with or without their attorneys), using an array of tools at their disposal in each approach.

Confidentiality 

Mediation is characterized by the confidentiality of the information shared during the process. This is regulated by law:

Admissibility of Evidence 

“Statements made within the framework of mediation will not serve as evidence in civil legal proceedings” (Section 79C(d) of the Law).

Mediator’s Confidentiality 

“The mediator will not use any information given to them during mediation, which they could not have obtained otherwise through reasonable effort, for any purpose other than mediation” (Section 5(d) of the Regulations). “The mediator will not disclose any information provided to them during mediation to anyone who is not a party to the mediation” (Section 5(e) of the Regulations).

Confidentiality of the Parties 

This is not regulated by law, so parties wishing to pursue confidentiality should arrange this in the “Mediation Participation Agreement,” thus providing a comprehensive and absolute solution to the confidentiality of mediation.

Mediator’s Neutrality

The mediator must remain neutral and free from personal interests throughout the mediation and in their interactions with the parties. This can be stipulated in the “Mediation Participation Agreement” and is also regulated by law:

The mediator shall refuse to accept the appointment if:

1. “There was a prior professional or personal relationship between the mediator and one of the litigants, unless the mediator informed the other litigants, and they agreed in writing to the appointment” (Section 5(b)(1) of the Regulations).
2. “The mediator believes they may directly or indirectly be in a situation of conflict of interest between their role as a mediator and another interest. If a potential conflict of interest is discovered during mediation, the mediator shall cease the mediation and inform the court that they cannot continue to serve as a mediator” (Section 5(b)(2) of the Regulations).

Advantages of Mediation Over Court Litigation

Mediation offers numerous advantages over pursuing legal action through the courts. Here are the main benefits:

1. Broadening the Scope of Interests: Mediation allows parties to move beyond the specific conflict, and identify additional areas of shared interest to include in the overall agreement. This approach enhances both bargaining possibilities and the fulfillment of interests that extend beyond the immediate dispute. In contrast, judicial proceedings focus solely on the specific conflict at hand.
   Example: A divorcing couple in mediation can create a comprehensive divorce agreement addressing all matters they wish to settle (e.g., property division, child custody, alimony) in a single agreement.
2. Impact on Relationships: Mediation takes place in a patient, calm atmosphere, unlike the often intense environment of a courtroom. This setting enables the parties to resolve disputes, mend their relationships, and potentially achieve reconciliation, thereby preserving and revitalizing their relationships and possibly opening new channels for communication.
3. Time Saved: Legal proceedings can drag on for years due to various reasons, including the heavy caseloads of courts, which lead to long intervals between different stages of the trial. Mediation, on the other hand, is not subject to such delays. The parties can conduct mediation at their own pace and reach agreements quickly, saving significant time.
4. Cost Savings: Legal action involves substantial costs, such as attorney fees, court fees, expert witness fees, and more. In mediation, the only expense is the mediator’s fee (which is not dependent on the outcome of the mediation). Moreover, mediation is far more economical because it is much faster than a legal process, which can take years and incur additional costs.
5. Control by the Parties: Mediation is characterized by the voluntary participation of the parties: the choice of mediator, the entry into mediation, the conduct of the mediation, and the signing of the agreement at the end of the process are all subject to the parties’ consent. A party can leave mediation at any stage.
   In a legal proceeding, there is a clear procedure dictating how the parties must behave. The parties do not choose the judge, who also determines the outcome through a ruling.
6. Final Outcome: Mediation aims to bridge the gap between parties, ensuring that neither side leaves empty-handed, as the final result will be mutually agreed upon. Legal proceedings, however, carry the risk that one party may end up with nothing and potentially face significant financial losses.

Is Mediation Mandated by Law?

Per the Obligatory Mediation Law, there are legal procedures which require, prior to the opening of the procedure, an informal meeting (introducing new information and coordination) to check whether it is possible to reach agreement through mediation. These include:

• Civil claims exceeding NIS 75,000 (Section 99 of the Civil Procedure Regulations, 1984).
• Family dispute cases (Section 3 of the Family Dispute Settlement Law (Temporary Provision), 2014), also known as the Mandatory Mediation Law.
  Since July 2016, parties in a family dispute must attempt mediation before resorting to legal action. They must submit a dispute resolution request to the legal aid bureaus near the court. After four mediation sessions with social workers and others at the legal aid office, the parties must decide whether to continue mediation or pursue a court case. The meetings mentioned above are solely meant to examine the potential of mediation between the parties. If this is possible, the parties will be referred to a mediation procedure.
• This mediation is less effective for several reasons: 
• In any situation, the parties will be required to pay a court fee due to the opening of the case.
• The parties have already arrived at a legal proceeding after investing several factors into it (for example, expenses, mental preparation, etcetera). It is very doubtful if at this stage they will come with an open heart and a desire to resolve the conflict through mediation.
• Hence, instead of reaching mediation through the back door after applying to judicial courts, it is possible and even worthwhile to reach mediation through the front door while saving time and money. A divorce mediation attorney will be able to assist you with this from the very first moment.

Legality of the Mediation Agreement

After signing an agreement during mediation, the parties have two options:

1. The agreement is a binding contract once signed by the parties, subject to the provisions of the Contracts Law (General Part), 1973, and the Contracts Law (Remedies for Breach of Contract), 1970.
2. It is advisable to submit the agreement to the competent court to grant it the status of a court ruling. This allows the parties to approach enforcement authorities directly in case of a breach:
   “Parties in a dispute who reach an agreement to resolve the dispute through mediation may request the competent court to grant the mediation agreement the status of a court ruling, even if no claim has been filed regarding the dispute” (Section 79c(h) of the Law).

Need Mediation Services? Our Office is at Your Service!

Our attorneys will accompany you throughout the mediation process, in divorce cases, family law issues, and other disputes that require mediation per the Obligatory Mediation Law and up to signing an agreement that includes and reflects the full wishes of the parties. Contact us today for legal advice!