Disputes can arise in situations where people are in contact with each other. This applies to both commercial and private situations. Many conflicts, however, end in deadlock and seeming intractable. The parties might be separated without reconciliation, or they might choose to let a third party - eg. courts or a parent - settle the dispute.
Implementation of a lawsuit can be a lengthy and arduous process, and the "winner" is often not really happy. There may be aspects of the conflict which the court has been unable to deal with and the relationship with the other party may become worse than originally imagined. In a lawsuit, the outcome is also uncertain and the solutions are dictated.
On the other hand, this is not the case with mediation which has the following basic principles:
Mediation is always voluntary for the parties who at any time may leave the negotiations.
Mediation is on a confidential basis. This applies both to the parties and the mediator.
The Mediator is neutral and does not come with proposals to resolve the conflict.
The Mediator provides no legal assessment of the conflict.
The Mediator manages and directs negotiations.
What conflicts can be resolved by mediation?
Conflicts that may be brought before the courts and conflicts that usually do not get to court, are both suitable for mediation. For example::
Business conflicts involving breach of contract.
Conflicts created by companies (eg. medical practices, accountancies or legal partnerships) on motion or resolution.
Conflicts in the workplace between groups / departments or individuals.
Conflicts related to inheritance matters, neighbor disputes, etc.
Conflicts related to the dissolution of marriage.
Conflicts in schools and educational institutions.
With certain types of conflicts, the final result cannot be achieved by debate alone. Consider, for example, the decision to separate or divorce. In mediation, the parties can agree on whether to divorce and on what terms including allocation of assets.
How long does mediation take?
Most mediation negotiations can be completed in a single day or a few meetings. The meetings usually last from a few hours to an entire day. Mediation can get started quickly, and although there may be several meetings, the process can be completed within a time frame of a few weeks or at most a few months.
A solution is positive:
When both partners feel like winners.
When both parties\\' interests and needs are taken into account.
When there are more costs to breaking an agreement than in keeping it.
When the parties can have a good mutual relationship in the future.
Mediation is a great tool
Additional names for mediation include court-based mediation, conflict resolution and conflict resolution. What is often unknown is that the mediator does not come up with specific solutions, and therefore the process is different.
MEDIATION - a new tool for conflict resolution.
Myths and facts about mediation.
onflicts are inevitable when people are working and / or living together.
What is Mediation?
For which conflicts is mediation suitable?
Mediation in Denmark.
How much does Mediation cost?
A. MEDIATION - a new tool for conflict resolution:
Are you in the middle of a lawsuit or is there a risk that you may be drawn into a lawsuit? Is there a risk that you may be pulled in probate or a risk that you might become dependent on the decisions of foreigners?
If you are at risk, there are 3 lessons to learn, namely:
it takes a long time,
it is financially burdensome and
there is significant personal impact on quality of life and health.
Litigation is not the only way to resolve conflicts. All conflicts, with some exceptions,(police force), can be resolved by mediation. Conflict mediation is successful for most parties who try it.
Experience shows that in the vast majority of cases - as opposed to lawsuits – the parties feel comfortable with the proceedings, the impact it had, and the result achieved.
B. Myths and facts about mediation:
1) Myth: The case cannot be reconciled. The counterparty is unreasonable or the hostility is too great.
Fact: The purpose of mediation is to create a scenario in which the counterparty will feel encouraged to be more open and less hostile. By bringing parties together, and not their representatives, mediation can, move the discussion from staunch enemy positions to a more a casual examination of individual needs and interests as well as common needs and interests.
Mediation also allows for the expression of concern, anger, anxiety, etc. -- natural feelings that make the relationship between the parties less tense.
Mediation gives the parties an opportunity to discuss the interests, backgrounds and needs that lie behind their concrete requirements. It often turns out that this discussion about needs, backgrounds and interests, rather than requirements, create a much better environment for a settlement solution.
2) Myth: I am an experienced lawyer. I have obtained settlements in many cases in the legal system, without the need for mediation.
Fact: It is true that lawyers often have the ability to achieve settlements of their cases - and that\\'s good. However, it is also true that it leads to even more appointments when a third neutral conciliator is in charge of the negotiations.
A major key to success in mediation is that the parties have greater direct involvement. The lawyers are the parties’ counselors and not their spokespersons. The lawyers become part of the discussion as representatives and mentors of the parties, explaining and clarifying the arguments.
The parties have a greater opportunity to build confidence with a neutral third party, and to trust each other. Mediation creates better insight into what the other party\\'s interests and needs really are.
3) Myth: We do not need a mediator. If we want to settle the matter we\\'ll call just the opposing counsel.
Fact: Settlement negotiations between lawyers is often plagued with risks for the parties involved in terms of who is to win or lose. Negotiations usually try to convince the other party of their risk. The spotlight is thus taken off the conflict and focused instead on emotional issues, whether the conflict is of great or minor importance. Most parties feel regretful and want to ease their pain. Most want to get it over with as soon as possible.
This switch of agenda from requirements and risk to the needs, interests and stress of the parties occurs when they negotiate directly in front of a neutral third party who does not know in advance the nature of the case or their relationship. Lawyers are useful as legal resources, impact analysts and sometimes sparring partners when the parties must reconcile, after entering into an agreement.
4) Myth: Why participate in mediation if the court ultimately makes the determination?
Fact: In mediation, the mediator cannot make any decisions on behalf of the parties. The parties can tell him their deepest secrets in confidence, without the other party hearing it or without being exposed. If the parties do not like the atmosphere of the negotiations, they can terminate them at any time. In court, it is the judge\\'s mediation and the determination is based on his assessment and ultimate proposal. What if the parties do not agree on the judge\\'s proposal? Are they bound by his judgment? It is therefore very important to be careful about what he is told and in what manner.
There is a big difference between the information a judge needs to make a legal decision and the information a mediator may unearth from the parties involved in order to combine viewpoints into an agreement.
5) Myth: The issues are too complicated for mediation.
Fact: Mediation works especially well in complicated cases because such cases reveal some of the principal interests and needs of the parties involved.
It is much more difficult to undertake complex cases with their different requirements however They should be divided into subsets. Particularly complicated cases can lead to complex judgments and expensive statements, whereas a simple handling of the major interests and needs of the parties could be formulated into a simple and clear agreement.
6) Myth: I do not trust my opponent. He is fickle and acting in bad faith.
Fact: In mediation, the mediator has the tools that allow the parties to reach consensus, even if he fails to establish trust between them. The information that the mediator extracts from each side (an individual\\'s background, interests, and future needs) helps to create a cooperative atmosphere between parties, which is often a surprise to them
7) Myth: The counterparty will not cooperate and you can never get him to come to mediation. What can you do about it?
Fact: The Mediator can attempt to switch the counterparty’s attitude. If he then is willing to go to mediation, are you willing to participate as well?
8) Myth: If mediation is not binding on the parties until the very end, what prevents them from leaving the negotiations or changing their minds?
Fact: Most parties would very much like to see a quick solution as an alternative to a lengthy legal conflict. Agreement during mediation can only be achieved if one party takes the counterparty into account.
The Mediator is aware of the tensions between the parties, but has the tools to defuse them and to encourage each party to be at the negotiating table. Each party knows that an interruption in the negotiations or changes of circumstance can lead to a lawsuit that they no doubt would prefer to avoid,. Many parties within the first hour get an impression of whether it is the right climate for settlement and whether a binding agreement is about to be drawn.
9) Myth: Mediation is effective for parties who must enter into compromise, but don’t want to.
Fact: Conciliation may be awarded by compromise, but it is not the only option. Experience shows that we can achieve more. The aim of a settlement by mediation is for both parties to get what they need so that both feel like winners. This occurs when the parties focus on their needs and interests and forget haggling over requirements for a time.
10) Myth: We have already unsuccessfully tried to settle the matter. How can mediation make any difference?
Fact: The importance of mediation is that:
• it primarily deals with the parties\\' needs and interests, • the mediator believes in each party\\'s information as that party\\'s reality and • the mediator’s experience and techniques dictate the solutions that can be extracted from people. A Mediator knows that solutions that come from the outside are not be as good as those that come from within. He knows what causes people to settle, and what elements are activated in each of them as they do so.
11) Myth: We do not need mediation. We are sure to win our case.
Fact: Any case can be lost in court. The surest information and the safest expert opinions can be changed or viewed in a different light during the trial itself. As the mediator does not need to know much about the facts (he must do bear on any decision), the cost of using mediation is very small. Even to win a "safe" case requires resources - including the winner’s.
If you are sure that you will win your case, mediation would prove that there certainly is significant room for options -- some that can give you what you want, but some that also provide the other party with what he wants such that he is more interested in an agreement rather than a trial. Thus, both parties have won.
C. Conflicts are inevitable when people are working and / or living together.
Wherever people are in contact with each other, seeds of conflict can arise. Many perceive conflict negatively, as signs of failure or unfriendliness, which can lead to recriminations and breakdowns in relationships. Conflicts, however, can also be perceived as an expression of dynamism, progress and development. Such a vision requires that you have the tools (methods) to resolve conflicts as they occur, in a manner in which all parties involved in the conflict can feel like winners.
D. What is Mediation?
The word mediation is derived from Latin for medius and means “to bring the parties to the center.” In mediation, the warring factions are helped by the skills of a trained mediator.
A mediator is not a counselor, judge, nor threat, but is trained to help people come up with solutions to a conflict – and to bring agreement among them on the solution.
In order to manage the resolution of dispute, a mediator must be trained in negotiation techniques as well as in specific questioning techniques to continually ensure that the process remain energized --Even in very sticky situations, a mediator can help the parties themselves find new ways to resolve conflicts. A Mediator is neural. His or her opinions or personal suggestions appear nowhere in the process. A Mediator asks questions to help the parties understand each other\\'s needs, interests and hurt feelings, thus freeing the parties to discover new solutions.
The benefit of using mediation for conflict resolution is first and foremost a happy solution for both parties.
A solution is not to be "foisted" upon parties either from a broker, adviser or a judge. When a conflict finds a solution through mediation, the two parties end up winners and not one loser and one winner. It creates the basis for conflict resolution and does not result in a relationship breakdown or animosity between the parties. Experience with mediation shows that in addition to being a satisfactory method for the parties to the conflict, it is also faster and cheaper than a lawsuit, for example. Finally, experience suggests that parties reconciled through mediation enjoy lasting solutions and are not later relegated to courtroom proceedings.
E. Which conflicts are suited to mediation?
Mediation is relevant for the following conflict areas:
• Business conflicts: for example breach of contract or breach of contracts. • Conflicts between the parties in limited liability companies and other communities. • Conflicts between board members and management or between line managers. • Sexual harassment and other problems in the workplace. • Neighbour disputes. • Conflicts related to the dissolution of marriages. • Inheritance disputes. • Ethnic strife. • Conflicts in schools between students and between teachers and students. • And many, many other types of conflicts.
F. Mediation abroad
Mediation has been practiced in the United States of America for approx. 20 years. The experience is known to be extremely positive. More than 80% of the cases brought to mediation find a solution that both parties are happy and satisfied with.
G. Mediation in Denmark
From 1995 on, we have practiced mediation in criminal cases. For information on mediation, you can turn to the Crime Prevention Council from the 1998 state administrations (former state counties) from 2003 on, the courts have offered court-based mediation.
Danish Association for Mediation and Conflict Mediation:
Association for all groups in Denmark working with conciliation and mediation. http://www.ffmk.dk
Centre for Conflict Resolution http://www.konfliktloesning.dk
Association of Family Lawyers http://www.familieretsadvokater.dk
Mediation Lawyers http://www.mediatoradvokater.dk
H. How much does Mediation cost?
Mediation costs DKK 1,000-1,500 per. hour incl. VAT, depending on the party who is acting as mediator. It is common practice for the parties involved in the conflict to share the cost of the mediator equally. The vast majority of conflicts that are brought to mediation find a solution within 3-8 hours.
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