Mediation in different countries

Mediation is a process in which a third party (the mediator) seeks to assist two or more parties involved in a dispute to reach a voluntary, negotiated resolution of their differences, usually embodied in a formal written agreement. Mediation differs from adjudication and arbitration in that the mediator, unlike a judge or arbitrator, has no authority to impose a solution on the parties. Mediators seek to have parties to a dispute focus on their interests in resolving their differences rather than their declared positions. Successful mediations result in "win/win" solutions rather than "win/lose" outcomes produced by third party decision-makers such as judges and arbitrators. Advocates of mediation believe that it is not only more cost effective than other forms of dispute resolution, but that mediated solutions are superior since they are crafted by the disputing parties themselves.

The relative success of mediation in resolving certain types of disputes in the United States, the United Kingdom, Australia, New Zealand, Argentina, China and other countries can be attributed to a number of factors, the most important of which are probably: dissatisfaction with other available forms of dispute resolution (due to the unpredictability of outcomes, the high cost of litigation or arbitration, and the length of time needed to obtain a final decision), and the existence of a legal framework supportive of the mediation process.

It is our belief that for mediation to be successfully applied in Russia and Ukraine on a large scale, in particular with respect to commercial and investment disputes, the parties to such disputes must not only believe that mediation has the potential to yield better solutions to their disputes than other processes, they also must be confident that if they fail to achieve a successful outcome through mediation, they will not suffer any significant adverse consequences solely as a result of attempting the mediation (other than lost time and expenses incurred).

In October 1995, Argentina, a civil law country adopted a Law on Mediation and Conciliation. In part to alleviate the problems of court overcrowding, Argentina provided for mandatory mediation of most cases. Once a case is filed in an Argentine court, it is assigned to a mediator, and mediation is scheduled to begin within sixty (60) days of the notification of the respondent and relevant third parties. We outline below some features of the law:

Attendance of parties at a mediation is mandatory and parties must be represented by an attorney.:

- A party that fails to attend is subject to a fine (Articles 10 and 11)

- Mediation proceedings are confidential. The mediator has discretion to hold joint or separate sessions with the parties (Article 11)

- If the parties enter into a mediation agreement, it shall be signed by the mediator, the parties, and their attorneys. Such agreement shall be enforceable as if it were a court decision. If the parties are unable to settle their dispute, the mediator shall issue a document to the parties allowing them to proceed with the claim in a court (Articles 12 and 14)

- The Ministry of Justice maintains a Register of Mediators consisting of persons who have a law degree and other specialized training (Articles 15 and 16)

- Mediators must recuse themselves from handling cases according to principles similar to those requiring judges to decline to hear particular cases. Parties may request a new mediator to be assigned to the case if they present a valid reason (Article 18)

- Mediators shall be compensated according to a set schedule established by regulations romulgated by the Ministry of Justice.

- If the mediation is successful, the parties themselves will apportion among themselves the cost of the mediator; if the mediation does not result in an agreement, the mediator's fee is paid out of a special state fund (Article 21)

The Argentine Law largely assigns to the legal community a monopoly over the conduct of mediation.