Mediation is usually the best way to solve a dispute. Mediation is a confidential and informal process, in which a neutral third party (=a mediator) helps parties to end the dispute. Further, mediation (as I apply it) is assisted negotiation, providing the best settlement agreement available for the parties in the shortest possible time. This agreement is based on what parties really want and need, although legal issues affect on the background.
Mediation has indisputable benefits for the parties. Unfortunately, mediation is too often disregarded by lawyers representing clients – although, everyone (also lawyers) could benefit from the process.
There are exceptions in lawyers' attitude. For example, lawyers love mediation in Ecuador, a country where mediation is used the most in Latin America. My fellow mediator and dear friend Ximena Bustamante established her mediation practice in Ecuador 10 years ago, and lawyers representing clients in mediation have picked up the speed in which disputes are settled, compensation for their services and most importantly, the importance of happy clients.
Further, the Finnish Bar Association has been promoting mediation for years. Yet, mediation is rarely used to solve commercial disputes in Finland.
In the United States, which is the most developed mediation market, mediation started to be used in commercial disputes due to the demands of the business sector in the late 70’s. Nowadays, mediation is an organic part of resolving commercial disputes. In order to prevent it to take the same 30 years as it took in the U.S. for companies to widely recognize the benefits of mediation and to regularly use it, the U.S.’s leading mediator Honorable Judge Daniel Weinstein founded The Weinstein International Foundation. The foundation both promotes the use of mediation worldwide and offers to solve cross-border public interest disputes (such as environmental disputes) through mediation. The foundation consists of pioneers of mediation from the U.S. and around the world.
As I am the member of foundation from the Nordic countries, I have have been promoting mediation with the foundation in Singapore, Italy and Georgia. During these visits, me and other members of the foundation have emphasized the following benefits of mediation for the parties and their lawyers:
If a dispute is mediated, parties
1) save legal costs (which tend to be extremely high in long negotiations and court proceedings/arbitration);
2) the dispute is ended quickly (it usually takes one day to mediate the dispute in comparison to years in litigation/arbitration) and
3) parties decide the outcome of the dispute (the decision-making power is not given to the mediator, unlike its given to a judge in court proceedings),
Thus, mediation is an excellent way for parties to manage risks – both concerning costs and the outcome of the dispute. Further, important business relationships are saved and everything is confidential. At the end of the mediation, the parties have the best agreement available.
For these reasons, mediation is usually the most beneficial way to solve a dispute for a company or for any other party. After a case is mediated, companies can concentrate in their actual business and private parties can move on with their lives.
Lawyers have a crucial role in mediation and participate in every step of the process. Lawyers:
1) Prepare their clients both in terms of strategy and conflict analysis. The legal issues and their relevance need to be well examined before the mediation session;
2) Lawyers advice and support their clients during all phases of mediation (preparation, participation, mediation agreement and settlement agreement);
3) Lawyers are able to negotiate the best agreement available for their client. Due to the special circumstances in mediation (including having a neutral party (=mediator) involved to build trust, to use all methods available to balance understanding of the dispute and to manage emotions, to explore the best deal available and to orchestrate a solution orientated process to end the dispute), this is not possible in a normal negotiation between the parties. The settlement agreement is negotiated in the shortest time possible;
4) Lawyers work in a well-organized and solution orientated process;
5) Lawyers are compensated for their services; and
6) Lawyers also provide a quick solution to their clients’ needs, who are satisfied and recommend them to others.
When solving disputes, I apply a mediation process used by the U.S. leading mediator Daniel Weinstein and developed in the U.S. during the past 50 years to fit in the best way to solve commercial and other complex disputes. The aim is to provide the best solution possible to everyone involved - in the shortest possible time. This process and methods used are different from any mediation process and methods used in Finland. My success rate is over 95 %.
I am happy to provide more information on the mediation and how it could be helpful to you in ending your dispute.
-- Pirita Virtanen Mediator, Founder & CEO Harvard Law School (LL.M.), University of Turku (LL.M.) +358 40 7766476 / pvirtanen(at)privatemediator.fi Private Mediator - Ending Disputes www.privatemediator.fi