What is Mediation?
A mediation procedure is a process for the consensual resolution of disputes between two or more parties, conducted instead of going to court. In this process, the parties agree on a neutral mediator, a professional who uses various techniques and their experience to bring the disputing parties together and reach agreements that save time and money.
A conflict can arise in various areas. The most well-known conflict that occurs is mediation during divorce, where the parties reach a divorce agreement approved by the court. However, mediation can also be applied to business disputes, inheritance disputes, business conflicts, neighbor disputes, family conflicts, political mediation, and more.
Section 79 (c) of the Courts Law, 1984, regulates the authority of the mediation process.
What is Mediation?
A mediator is a professional in every sense. Since the field is flooded with various types of mediators, it is important to find one who has studied the profession, has the appropriate certificates, experience, and recommendations. A good mediator will know how to diagnose the needs of the parties, the boundaries of each, and will try to find overlapping points of agreement that respects both sides. Mediation can take place according to the parties’ wishes, as a preliminary process before going to court, or by court order when both parties agree to it.
If the parties cannot agree on the identity of the mediator, the court can apply Section 5 of the Courts (Mediation) Regulations, 1993, and appoint one from the mediator pool. However, the parties can turn to any person and determine that they are a mutually-agreed mediator and are not bound by the list of mediators published by the court administration.
Advantages of the Mediation Process:
- The mediation process is usually shorter, compared to legal proceedings
- It is less expensive
- Meeting times are according to the parties’ wishes, unlike courts where the parties must adjust
- Solutions are made by agreement, thus reducing the likelihood of objections and non-compliance with agreements
- It creates respectful dialogue and communication between conflicting parties, as opposed to the court, which ultimately decides in favor of one party
- If the parties do not reach an understanding, they can always turn to the court, but it is advisable to exhaust the mediation process first
- The mediation process is private and regulated by confidentiality and secrecy agreements
- The parties have full control over the nature and details of the agreement, without a third party imposing it on them
- Support is also provided after reaching a mutual agreement, for issues that arise over time and require solutions
For Whom is Mediation Suitable?
Mediation is suitable when both parties are willing to make compromises and are each ready to reach an agreement. If each party is entrenched in their positions without any ability to compromise, no matter how good the mediator is, they will not be able to assist. In such cases, the court is the appropriate place.
How is the Process Conducted?
The mediator is not a judge, and even if they are a lawyer, they do not act in that capacity during the process. They do not impose solutions as courts do and essentially have no authority for binding decisions. They are bound by confidentiality, neutrality, fairness, and good faith.
The mediation process is informal. It is not bound by the rules of evidence and procedure like courts, allowing for creative and alternative solutions that courts do not employ.
However, if the mediation process succeeds and a “mediation settlement” is reached—a settlement agreement between the parties to the dispute achieved at the end of the mediation process—it binds the parties, mainly because it was reached by agreement. This settlement can be submitted to the court and, if approved, gains the status of a court ruling. In such a case, if one party does not act as agreed, they are contemptuous of the court, and in appropriate cases, enforcement measures can be taken to implement it.
Types of Mediation Meetings:
- Private Meetings: Each party is allowed to share information with the mediator that they do not want the other party to know. The mediator will learn what is important to each party, their boundaries, their desires, and how they see the conflict being resolved. The mediator gets to know the parties and their boundaries, creates empathy between them that allows for maximum openness and venting of anger, and seeks overlapping points of agreement.
- Joint Meetings: These are the core of the mediation. In these meetings, all parties involved in the conflict participate. The parties present the conflict and the solution they want to reach from their perspective, and the mediator guides them to reach agreements.
- Mediator Meetings: Consultation meetings between mediators when there is more than one mediator (e.g., lawyers serving as mediators in divorce proceedings).
Can Statements Made in Mediation be Used Later in Court?
No. Everything said during the mediation process remains confidential and cannot be used as evidence in any civil or other legal proceedings in court.
Can a Mediation Agreement be Canceled?
A mediation agreement, to be binding, must be approved by the court. If one wishes to cancel it, they must apply to the court that approved it and prove that it meets the grounds for cancellation as permitted by law: coercion, lack of free will, or lack of full understanding of its content, concealment of information, bad faith, errors in the agreement that cause its cancellation, unreasonable disadvantage, or extreme illegal or disrespectful demands.
Court Mediation Process
The Family Dispute Settlement Law, 2014, which came into effect in 2016, requires any divorcing couple to attempt to settle their dispute at the court’s assistance units before filing a lawsuit in family court. The purpose of the law is to reduce legal disputes and prefer conflict resolution through agreement and peace. This process is provided free of charge, depending on eligibility conditions, and in any case, the parties have the option to conduct a private mediation process instead, as long as it is proven.
This is the only mediation that requires the parties to attend the first meeting. If one party is not interested in mediation, they must fill out a refusal form at that meeting, which will be forwarded to a judge in family court. Following this step taken, filing the lawsuit is permitted.
If the parties agree to mediation, they will be given four meetings free of charge by the social workers of the family court’s assistance unit, to be held within 45 days. From the second meeting, the parties’ lawyers can participate in the process. If the mediation succeeds, the parties will draft a divorce agreement to be submitted for court approval, and if the mediation fails, the first party to file will be able to submit the lawsuit to the court.
As previously mentioned, the court can also order mediation in any type of dispute, but it cannot force the parties to perform it. A key condition for the start of mediation is the consent of both parties to the process.
During the mediation, the parties are not allowed to file lawsuits, and as long as the process continues, the legal proceedings are frozen.
Conflicts can raise many emotions, harm your business, delay important family processes, and create significant economic and psychological damage. Therefore, it is essential to find a sensitive and experienced mediator who is also a lawyer specializing in the relevant field of the dispute and in contract law, to find solutions with a comprehensive personal and holistic perspective.
Our office specializes in mediation, and you can find experienced mediators who are also lawyers, who will be happy to meet with you, advise you, and answer any questions.
Feel free to contact us through the chat on the website or call: 055-9826594