Frequently Asked Questions
1. What is Mediation?
Mediation is a confidential and voluntary settlement process in which an impartial third person, the Mediator, works with the parties to a dispute to find a resolution that is acceptable to all the parties. The mediation process is voluntary which means that the parties may terminate the mediation at any time before reaching a final binding agreement.
2. The Benefits
Cheaper and faster. Mediation is usually cheaper and faster than litigation. In addition, management uses the time previously spent in managing litigation to focus on business.
Parties control outcome. All parties have a role in fashioning the solution to their problem rather than having a decision imposed by a court (or arbitrator) which usually results in one party winning and one party losing.
Confidentiality. The mediation process is confidential with respect to any oral discussion that takes place during the mediation and also with respect to any documents produced during the process. Any settlement agreement between the parties can be kept confidential if the parties so agree.
Preserves existing relationships. Unlike litigation, mediation enables the parties to preserve existing business relationships, and often results in strengthened business arrangements.
High Success Rates. Mediation usually results in a binding agreement.
3. What type of disputes can be mediated?
Generally any dispute in which a negotiated solution is possible is suitable for mediation. Mediation has proven to be especially effective in commercial and contract disputes, insurance and personal injury cases, and domestic relations conflicts.
4. What does a mediator do?
The mediator will first briefly describe the process and the agreed rules for the process. Then the mediator will listen to the views and statements of each party without offering any opinion. The mediator helps the parties to identify the reasons for the dispute by generally focusing the discussion on interests rather than legal positions. The mediator tries to move the parties beyond a discussion of right and wrong and tries to get them to consider options that would lead to a settlement.
Frequently, the mediator will meet privately with each party in a separate session, sometimes called a “caucus,” and carries suggestions and offers for settlement back and forth between the parties. In the separate sessions, the mediator will often uses a tool called “reality testing,” in which the mediator will invite a party to explore weaknesses in the party’s case and look at the issues from the opponent’s perspective.
The mediator will treat all comments and statements provided by a party in separate session as confidential if the party so requests. If agreement is reached, the mediator can assist the parties by outlining the terms of the settlement so that a written settlement agreement can be drafted and signed by the parties.
5. How does a party to a dispute start a mediation process in Bulgaria?
Parties interested in mediation in Bulgaria can contact a mediation provider. The provider will attempt to obtain an agreement from all parties to participate in mediation. If the other party consents to mediation, the parties then agree on a mediator proposed by the provider or can select a mediator of their choosing in accordance with the rules of the provider. After agreeing to mediation, the parties enter into a mediation agreement which sets forth the terms and conditions under which the mediation will be conducted.
6. If a mediation begins, is a party obligated to reach settlement of the dispute?
The parties are under no obligation to reach settlement. Parties to a dispute may reach an agreement on all, some or none of the issues. If full agreement is not reached, the parties often find the process helped them clarify and narrow the range of issues in dispute.
If the parties reach agreement, the mediated settlement agreement can be enforced by the courts as a contract. Sometimes, the parties will want to provide for greater enforceability by notarizing their agreement and providing that it can be enforced as a judgment; or by appointing the mediator as an arbitrator and agreeing that the mediator can enter the mediated settlement agreement as award enforceable in the courts as an arbitral award.
7. How much time does mediation take?
Mediation time can vary depending on the dispute and its complexity. In simple disputes mediation and agreement can take as little as one meeting with agreement in an hour or two. Most disputes, particularly personal injury claims, are mediated within one day.
8. Who pays the cost of mediation?
The parties will usually split the fees and cost of the mediator 50/50. The parties can also agree to split the fees and costs on any basis that they so choose.
9. What are the essentials of a successful mediation?
Positive Mindset. Begin the mediation with an expectation that the mediation will achieve a settlement that is satisfactory to both parties
Listen. Listen to the Other Party and be flexible in your approach to solving problems.
Be Realistic. Avoid outrageous and unsupported demands on the other party.
Cooperate. Cooperate with the Mediator and behave in a courteous manner towards the other party.
Be Creative. Seek Innovative Solutions. Move away from conflicting positions to mutual interests.
10. What role do attorneys play in mediation?
Unless the parties have agreed otherwise, a party has the right to have counsel available at the mediation. Often a party will want to consult with counsel before mediation begins, during the mediation process and before entering into a mediated settlement agreement.