Mediation proceedings consist of four stages
Certain stages follow a necessary sequence (with specific activities running throughout the entire procedure); however, mediation should always be adapted to the nature of the dispute, the agreement of the parties, and their preferences. The mediator may therefore use flexibility and is not required to rigidly follow each stage.
- Introductory joint meeting
A good start to mediation is a guarantee of building trust among participants and is a prerequisite for the success of the procedure. Therefore, the first stage of mediation, the introductory joint meeting, plays an important role in the process.
The mediator’s opening statement is primarily aimed at introducing the parties to the procedure, explaining its characteristics, and clarifying the mediator’s role.
- Exploration stage
During the exploration stage, the mediator gathers all relevant and necessary information in order to identify the problem, the points of conflict, and the interests of the parties. Separate meetings with the parties are particularly important at this stage. The mediator’s role must always be such as to enable the parties to objectively assess their dispute, as negotiation must not be replaced by rivalry. The mediator encourages the parties to overcome obstacles and reach their own conclusions and agreements, while refraining from expressing opinions on the dispute or its possible outcome.
- Negotiation stage
Following the completion of the exploration stage, one of the most important and complex stages begins with the the negotiation stage. During this stage, the mediator further clarifies the parties’ interests, explores possible options with the aim of identifying the most acceptable solution for both parties, and encourages the parties to put forward proposals for a potential resolution, i.e. a settlement that would satisfy their interests.
- Conclusion of agreement or termination
Mediation is successful when the parties, in separate or joint meetings, resolve the dispute in whole or in part and reach an agreement. At that point, the mediator convenes a final joint meeting. Prior to this, the mediator records the parties’ proposals, conclusions, and agreements, checks whether any issues remain unresolved, assists the parties in finalising the details of the settlement, and presents the agreed terms orally. The mediator then confirms that an agreement has been reached.
Where mediation does not end successfully with an agreement, the procedure is terminated.
If the parties were referred to mediation by a court, the case is returned to the court.
Preparation of the settlement agreement
An oral agreement shall be reduced to writing, which may be done by the parties themselves, the mediator, or the parties’ legal representatives. Mediation concludes in the form of a court settlement, and where a notarial system exists, also in the form of a notarial deed.
The settlement may be general or detailed, as well as imprecise, conditional, or unconditional. The settlement must be binding and drafted in clear and understandable language for the parties. Even where parties are legally unrepresented, the text must remain clear and comprehensible and must not require additional explanations that could serve as an excuse for failure to comply due to an alleged lack of understanding. The mediator must inform the parties that the settlement has the effect of a final and enforceable court decision, but that, like any other court settlement, may be set aside if the statutory conditions for doing so are met.
Before the parties sign the settlement, the mediator shall read it aloud, ask the parties whether they understand it and whether it reflects their will, and finally inform them once again of the legal consequences of the agreement.