In general, mediation is a negotiation between two or more parties, who are professionally supported by a third party, a mediator. It may refer to a contract negotiation or a conflict or dispute, regardless of whether it is in a commercial or private context. It can also refer to purely internal conditions, such as a conflict at a workplace.
Briefly, mediation can be described as a negotiation between two (or more) parties, where a third party (the mediator) helps the parties to negotiate. The negotiation can, for example, refer to a contract negotiation or a dispute, where the parties want a solution, without going to court or arbitration (private court).
The mediator is impartial and neutral, which means, among other things, that the mediator does not take a position between the parties, does not give them any legal advice (they get such advice from their lawyers instead), does not decide on the substantive issues, but only facilitates the negotiation. This type of mediator is called a “facilitative mediator”. In a facilitative mediation, it is thus the parties who decide their own solution with respect to their interests and needs. The mediator helps them reach an agreement by managing the procedure itself. Personally, I work as a facilitative mediator.
Another type of mediator is an “evaluative mediator”, who evaluates the dispute, makes concrete proposals for solutions and/or gives his/her personal opinion of how the dispute would likely be assessed by a court or in arbitration. In my view, an evaluative mediator thereby risks losing his/her impartiality and neutrality.
For parties who want to hire a mediator, it is therefore important that they decide whether they want a facilitative or an evaluative mediator. Otherwise, they risk being met with unwanted consequences.
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