What is Mediation?
Mediation is a confidential alternative dispute resolution process in which the parties work with a mediator to negotiate a settlement to their dispute. The mediator is a neutral party who has no interest in the outcome and is trained to facilitate a settlement between the parties. In mediation, the parties are the decision makers and only they can reach a mutually satisfactory agreement.
Confidentiality is at the heart of a mediation process and is critical to a successful resolution.
All documents drawn up and all statements made during and for the purpose of a mediation are confidential and cannot be used in any other proceeding and are inadmissible as evidence.
A settlement agreement reached in the framework of mediation can be ratified by the competent court, giving the agreement the force and effect of a final judgment.
Advantages of Mediation in Real Estate disputes
Mediation is often faster and less expensive than proceedings. It usually takes no more than 3 or 4 sessions. Mediation empowers the parties themselves to find the solution to their dispute.
A mediated solution usually leads to greater satisfaction among the parties and the underlying relationship between the parties remains intact as much as possible.
Furthermore, the parties can appoint a mediator specialized in construction matters which can be very useful in understanding the particularities of the construction sector.
The Federal Mediation Commission has set up a Special Committee on Construction whose mission is precisely to investigate and promote mediation within the construction sector. Thomas Braun of our firm is an active member of the Special Committee on Construction.
The role of lawyers during mediation
During the mediation, the role of a lawyer is different as he must act as a “coach” to his client. The lawyer helps the client to understand the strengths and weaknesses of his case and to identify the best- and worst-case scenarios, should the case go to court.
Finally, based on his experience, the lawyer can advise his client about the substance of an agreement, but (s)he can also usefully advise his client as to whether to reach an agreement during mediation or to proceed with the trial, in particular by providing a realistic idea of what litigation costs and duration could be.