Mediation and negotiation are two types of alternative dispute resolution that are distinctly separate from litigation and arbitration. This is because they represent a departure from the traditional format of adjudication, where parties attempt to ‘self-help’ without the assistance of courts or tribunals. In negotiation and mediation, information is developed not only for case assessment, but also to understand and address the underlying causes of a dispute, to recognise and modulate the parties relationship, and to arrive at and judge the value, feasibility and durability of an arrangement. However, despite their similarity on this point, the two methods serve to fulfil independent purposes.
For negotiation to take place, both parties must mutually reach a settlement between themselves. It’s concluded when the settlement is something that both sides agree on, usually resulting in one or more concessions. Negotiations are actions through discussions between the parties or their representatives, without the involvement of any third party. It’s imperative that each party consults with a lawyer before reaching a negotiated settlement, ensuring they are made aware of all their rights and duties in relation to the matter.
By contrast, mediation is informal and an extension of party choice. The process has often been described as being soft on the parties and hard on the problem. Mediation is essentially facilitated negotiation, and relies on a clear and transparent exchange of information. It offers the benefit of fixed fees, without the possibility of any unexpected costs, making it an affordable and reliable option. The EU Mediation Directive requires all Member States, aside from Denmark, to have a systematic structure in force in order to easily allow disputes to be settled by mediation. Despite the fact that mediation can be applied successfully to almost any dispute, in Malta and many other EU countries its presence is still virtually non-existent outside of family law (for which mediation is mandated).
How AE Legal can help
AE Legal can guide clients through either process, depending on which is more appropriate to the situation. Our team of lawyers have extensive experience in navigating the course to successfully conclude straightforward and complex negotiations. We can also take a less conspicuous role, offering advice and guidance throughout the mediation process, from the application stage all the way through to its conclusion.