Meditation Regulations and Legal Obligations

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In the United States, mediation laws vary from state to state. Some states have clear expectations for certification, ethical standards and confidentiality. Some also exempt mediators from testifying in cases they have worked on. However, these laws apply only to activities within the judicial system. Community and commercial mediators operating outside the judicial system may not benefit from such legal protection. State laws regarding lawyers can be very different from those covered by mediators. Professional mediators often consider the option of liability insurance. Mediation, as used in law, is a form of alternative dispute resolution that resolves disputes between two or more parties with concrete implications. Typically, a third party, the mediator, helps the parties negotiate a settlement.

Alternates may arbitrate disputes in a variety of areas, including commercial, legal, diplomatic, labour, municipal and family matters. The preparatory stages of mediation may vary depending on legal and other requirements, including the willingness of the parties to participate. [31] Is a dispute resolution clause providing for mediation enforceable? What is the legal basis for enforceability? There is no government or regulatory body for mediation, nor is there a uniform regulatory system in the United States that governs the practice of mediation. Mediators are not state-licensed and there is no formal certification process, although mediators can be trained and certified by a number of educational institutions or courts, and there are no legal restrictions on the use of the title “mediator” because the title of doctor and lawyer is protected. However, there are standards of conduct for mediators published by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution (see www.mediate.com/articles/model_standards_of_conflict.cfm). These standards include avoiding the appearance of conflicts of interest. The Federal Government has developed a Code of Ethics for Mediators (admin.fmcs.gov/assets/files/OGC/MediatorCodeofConduct.doc) for mediators employed by the Federal Mediation and Conciliation Commission (FMCS). The CMSF is a federal agency that provides mediation services primarily in the area of collective bargaining. Although statistics are not published due to the confidential nature of mediation, the general consensus on behalf of many reputable entities is that mediation has a high overall success rate, as parties participate in an environment where they can resolve their legal and factual disputes freely and confidently before a neutral third party. Some entities, such as the Department of Justice, have prepared statistical summaries of case reports in the United States in which a private mediator has conducted an ADR procedure. Data results show that voluntary ADR procedures had a 75% success rate in 2017. Court cases, on the other hand, had a 55% success rate.

In addition, the Financial Industry Regulatory Authority reported that 242 (89%) of its mediation cases were resolved (www.finra.org/arbitration-and-mediation/dispute-resolution-statistics#mediationstats; www.justice.gov/olp/alternative-dispute-resolution-department-justice). A mediator should ensure that all parties understand and accept mediation as a process, the role of the mediator in that process, and the relationship of all parties to the mediator. The parties must also understand the specific procedures the mediator intends to use, including whether and how the mediator can assist the parties in assessing the likely outcome of the dispute in court or arbitration if they are unable to reach an agreement through mediation. In addition, a mediator must be satisfied that the parties have reviewed and understood the terms of a settlement and, where appropriate, advise the parties to seek legal or other expert advice. In Germany, due to the Mediation Act of 2012, mediation is defined by law as a process and the responsibilities of a mediator. Due to the German language and the specific codification (the so-called “functional mediator”[39]), it must be taken into account that all persons who “mediate” in a conflict (defined as moderation without evaluation and proposed solutions!) are bound by the provisions of the Mediation Act, even if they do not call their mediation approach/process, but process support, mediation, conflict counseling, organizational consulting, conflict coaching or other. For example, according to paragraphs 2 and 2. 3 Mediation Act, the mediator has certain information and disclosure obligations as well as restrictions on practice. In particular, a person who has exercised in any way (legal, social, financial, etc.) an advisory function to a party in this case cannot act as a mediator in the case (Article 3(3) and (4) of the Mediation Act – the so-called “prohibition of prior involvement”[40]). Conciliation is a method of alternative dispute resolution in which the disputing parties appoint an arbitrator who meets with the parties separately and jointly to resolve any dispute between the parties. In this process, after a meeting with both parties, the arbitrator prepares a compromise that he or she considers to be a fair resolution of the disputed issue. Conciliation is used to avoid taking a case to court.

(definitions.uslegal.com/c/conciliation/). The lawyer can play as active a role in mediation as his client is willing to give him. The disputing parties must determine, at the beginning of the mediation, whether a lawyer is present at the mediation session and whether they can actively participate in the mediation. In general, lawyers can and should act as legal advisers to their clients, both during mediation and after the conclusion of the proceedings. The lawyer can and should review a proposed agreement to determine whether it is in the best interests of the client. Having a lawyer present at mediation can help defuse cases of power imbalances. In some cases where emotions are exceptionally strong, the lawyer may represent his clients in a mediation session. Such representation represents an important ethical and professional obligation for the lawyer, who must communicate with his clients, understand their point of view, defend them and ensure that the mediation process meets their needs.

Once a dispute has arisen and the parties have agreed to submit it to mediation, the procedure is initiated by one of the parties, who forwards a request for mediation to the Center. This request should include summary details of the dispute, including the names and references of the parties and their representatives, a copy of the mediation agreement, and a brief description of the dispute. This information is not intended to fulfil the legal function of defining arguments and questions and limiting the applicant`s case.

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