The process of mediation
Information gathering phase
The mediator gathers information about the dispute and hears the parties’ positions on the dispute and tries to get an overview of what is important for each of the parties involved. By allowing the parties to mutually understand what is important for each, a climate of trust can already be created in this first phase.
Formulation of positions
The mediator of Jason Edworthy Swindon will listen to each party’s vision and position on the dispute and ensure that it is understood by both the mediator and the counterpart (s). It may be that by the mere elimination of possible misunderstandings and problems of communication, a harsher picture has been attributed than the reality of the dispute. By clearly separating the content of the dispute and the discomfort created by the emotions, prejudices and prejudices, the parties will become aware of the real problem to which a solution must be brought.
Define needs and interests
On the basis of the positions of the parties, the mediator will clarify on the basis of the contributions of the parties what are the needs and interests of each of the parties. Then it will appear that almost all interests have been taken into account, and that there are still some of which remained on standby that could cause the negotiation to fail. For this reason, the mediator will ask the parties to formally confirm that there are no interests other than those listed.
It may happen that one party is reluctant to speak freely in the presence of the other party (s). When this happens, the mediator may suggest that the parties have a separate interview with each of them. Everything that is said in the caucus will remain confidential between the mediator and the party concerned, unless the mediator agrees to add some elements to the debate. This fair treatment of the parties and confidentiality are necessary to ensure the neutrality of the mediator. It will therefore be ensured the judicious use of it by the mediator in the negotiation.
Options and negotiation
The mediator explores together with the parties the options for possible solutions and helps them to define which solution best suits their needs and interests.
A mediation is and remains a negotiation where one wishes to reach the best result for the client. The only difference with a negotiation is the fact that a third party is involved, who is the guide of the process and leads the parties in search of a solution.
End with or without agreement
It is always possible that the mediation ends without agreement or partial agreement.
In the case of mediation ordered by the judge, the parties inform the judge of the outcome of the mediation. When they have not reached an agreement, they may request a new term or request that the procedure be continued.
When the parties reach an agreement with the help of the mediator – with or without the (permanent) assistance of the lawyers, it is put in writing and signed by the parties.
Article 1733 of the Civil Code provides for the possibility of submitting the agreement of mediation to the homologation of the competent court. This approval has the same consequences as a judgment of agreement. There is no further obligation and an approval is generally requested (by only one of the parties) if the other party does not perform or does not fulfill its obligations or commitments.