Women In Law Edition 21'

New Laws


Chahenda Mansour

“Mediation and beyond; Mediation is a procedure in which the parties discuss their disputes with the assistance of a trained impartial third person(s) who assists them in reaching a settlement, it can be defined also as the attempt to settle a legal disputes through active participation of a third party –mediator- who works to find points of agreement and make them in a conflict agree on fair results.

The use of mediation is therefore better because of the time, cost, possible outcome and its consequences. Settling the commercial dispute through mediation is faster than the other means of solving the disputes, since the two parties don’t have to go through a long litigation process that may take years and many layers of appeal. This would only end in having a winning and a losing party, eventually cutting off the commercial relation after the dispute.

The cost of mediation and arbitration is equally paid by the parties involved. However, the mediation cost includes the administrative fees of the center or the entity, and the mediator fees, which are shared with both parties at the beginning. There is an obvious difference when compared to arbitration, which is known for its rapidity, but also for how expensive. Similarly, court and lawyer fees that the parties continue to pay during the process are also costly.

The lawyer’s role is well known in courts, but it’s different when it comes to mediation. The lawyers play the role of coaching in order to prepare their clients for negotiations, and not merely defending the client, thus lengthening the procedure with the aim of receiving higher fees. However, the lawyers need to be aware that they are taking on a different role in this case.

The difference between the judge and the mediator affects the outcome and consequences. Judges are officially appointed to conduct the court proceedings, thus they’re decision makers who play zero sum games where there is a winning and losing party. On the other hand, the mediator helps the clients in communicating clearly, aiming to end the dispute by satisfying both of their interests. They can also brainstorm solutions with the clients based on their experience.

Sometimes, the reasons for the disputes aren’t the real ones, so the mediator has to figure out the real ones very carefully and start dealing with them. Therefore, the mediator must have certain characteristics, such as the ability to negotiate, persuade, diplomacy, smart, ethical values, neutral, calmness and some body language skills to be able to understand what’s going on beneath the surface.

However, in some cases, the clients need to know the mediator’s opinion in order to take it into consideration. That is one of the reasons why the mediator needs to be trustworthy and unbiased.

Nonetheless, one of the most important features that distinguishes mediation from other means of dispute settlement is that it doesn’t forfeit the parties’ right to proceed using other means of dispute resolution. This can either be through litigation or arbitration and it can be done at any point during the mediation process. While the mediation agreement has the same force as a binding civil contract, it is not sealed by the force of res judicata﹣adjudged matter.