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Mediation and settling: any difference?
Administering justice is not the only duty of a court; its official duties also include attempting an amicable settlement.
Mediation increasingly is an element of the latter.
Nevertheless, there is a difference between settling amicably and solving a dispute by mediation.
The first difference would be the position taken by the litigating parties. When litigating, more often than not parties tend to remain adversaries, while mediation encourages them to collaborate.
Another essential difference is that at a court hearing, the legal aspects of and positions taken in the case form the basis of a solution.
The opportunities to deal with various interests and emotions are rather limited.
In mediation proceedings, the dispute is freed from its legal suit, thus making room for addressing underlying interests and needs.
The solution thus reached will be conducive to these interests. In mediation, legal aspects and positions are discussed only if absolutely necessary to solve the problem.
Also, a mediator may discuss matters with the parties in an individual setting, giving each party the opportunity to lay before the mediator anything that frustrates a solution or to discuss a solution with the mediator in a private setting.
Courts and judges do not offer that option.
Courts increasingly refer cases to a mediator, particularly on account of the benefits aforesaid.
The parties of course must be willing to bury the hatchet and be committed to find a feasible solution on the long term.
A recent assessment showed that the results of referral to mediation are positive.
However, mediation or settlement in court are not suitable for all disputes.
If the parties for instance wish to obtain an opinion on principle with respect to a purely legal matter, the court must have the final say.
For more information, please contact Eva Schutte, Mediation Team.
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