Mediation Presentation

By referring mediation to alternative dispute resolution methods, the scientific doctrine thereby opposes it to judicial proceedings. The judge or arbitrator often helps the disputing parties to come to an agreement that allows them to stop further proceedings. However, there is a big difference between the resolution of conflicts in court and their resolution through mediation.

1. In court

In court (arbitration)the parties cannot choose a judge, but are forced to go to court, often against the will of one of the parties.. The task of the court is to determine which of the disputants is right and who is guilty (or to divide the blame between them). The disputants do not participate in the development and decision—making - this is the function of the judge, i.e. a third party makes a decision on the dispute. A party cannot terminate negotiations at any time. The disputing parties are obliged to obey the court decision, even if one or even both parties are dissatisfied with this decision. Confidentiality is impossible in principle: there is a mandatory list of documents that must be made public, the court is publicity. The courts are overloaded, and the consideration of cases lasts for months, especially when one of the parties is interested in delaying the consideration of the case. Legal costs are always high. Some important issues for dispute resolution may not be considered in court due to ethical or legal restrictions, because the trial is usually public. The court cannot go beyond the scope of the statement of claim. The court focuses on the past, and punishing the guilty person does not relieve the psychological tension between the parties, so that after the judicial resolution of the conflict, their cooperation is often difficult or even impossible.

2. In mediation

In mediation, the entry of both disputing parties into the mediation process is voluntary, and the mediator is a freely chosen, disinterested person, which excludes any corruption component. The parties' appeal to mediation is possible at any stage of civil/criminal proceedings. before going to court, or instead of going to court. Mediation is initially aimed at finding agreement; the disputants stop looking for the "right" and "guilty", and with the help of an intermediary they discuss different options for resolving the conflict and jointly choose the one that they both consider the best. Mediation is focused more on what each of the parties understands by justice than directly on legal laws, precedents and rules. In mediation, the disputants themselves work out and make a decision, the mediator does not make any decisions about the disputants and the conflict. Mediation is a process in which all decisions are made only by mutual consent of the parties, and both of them voluntarily assume the obligation to implement the decisions they have made jointly. Naturally, the parties do this only when they are satisfied with these decisions. The risk of mediation is minimal, since each party can refuse to continue the process at any time.

 

Mediation takes place confidentially, everything remains between the parties or the other party and the mediator. The mediator is obliged to keep secret all the information received by him . The mediation process is relatively short. This is an important advantage of mediation, especially in Kazakhstan conditions., i.e. it saves the resources of the parties: - time, because unlike judicial, this procedure is much shorter.

Mediation is cheaper than traditional court procedures. because the state duty is not paid and expensive services of lawyers are not needed; nerves (health).

In the mediation process, any issues that are relevant to the conflict and which the parties consider important can be discussed. The mediation process is quite flexible. Mediation is conducted in a common and understandable language, so that any decision can be understood and agreed upon by both parties.

The mediator's main task is to help the parties reach an agreement.

Successful mediation leads to a mutual benefit of the participants and is focused on the future interaction of the parties, eliminates the risk of public disclosure of the dispute; the decision is made by the parties voluntarily.

Mediation is especially effective in cases where it is necessary to restore relations between people whose interaction should be preserved in the future.

It is not advisable to conduct mediation if the parties obviously do not want to resolve the conflict. In this case, even an order from higher authorities will not lead to success. If there is a desire to resolve the conflict, then the probability of successful resolution of the conflict through mediation is very high: in more than 80% of cases, its result is a strong and long-term agreement that is respected by both sides.