ADVANTAGES OF MEDIATION IN CIVIL DISPUTES

Abstract

The paper is devoted to the features and advantages of using mediation in civil disputes. First of all, the article discusses the experience of some foreign countries (Germany, Lithuania, Estonia, etc.) in the field of mediation, and then aims to determine whether Georgian mediation is based on the model of any country or whether it differs in any specifics in Georgia. The article discusses the unique and extensive possibilities of mediation in resolving civil disputes. Consideration of the case in court is based on the consideration of legal issues, mediation is not limited to the consideration of legal issues; Non-legal aspects can also be analyzed during mediation. Thus, it is a flexible and informal process that gives the parties maximum freedom to discuss any issue of interest to them and takes into account their interests. The mediation process can be limited only by the interests of the parties and the mediator’s creative methods. In this way, the parties have control over the process and results of mediation. The paper confirms that mediation in Georgia is based on a rather narrow model. In fact, the Georgian legislator lays the development of mediation on practice and gives freedom of action to the mediator, although he stipulates that this freedom is limited by the will of the parties. Accordingly, the mediation process should be carried out in compliance with the principle of voluntariness of the parties. Mediation is particularly attractive to businesses because of its benefits. For the parties, the confidentiality of the mediation process, saving time and financial resources, maintaining economic relations between the parties, focusing on positive aspects, and a favorable situation for both parties are important. Mediation is aimed at the self-determination of the parties, which helps to prepare the necessary ground for the settlement of the dispute. In addition, mediation can help prevent future disputes.

Keywords: Advantages of Mediation, Flexibility, A process based on personal interests of parties.

Introduction

One of the most important ways to resolve civil disputes is mediation. Mediation is interesting in the context of long and intense civil litigation.

The purpose of the paper is to determine the economic and legal consequences of mediation. This should be especially noticeable for the business sector. Therefore, it is necessary to determine what are the consequences of timely consideration of business disputes in order to avoid negative economic consequences and for the sake of fairness. In this context, it is necessary to study how mediation is characterized, how it differs from the consideration of a case in court. Therefore, it is important to explore both the advantages and disadvantages of mediation.

One of the most common ways to resolve civil disputes is to consider the case in court, however, in addition to its positive aspects, it is also characterized by some negative features. That is why it is advisable to study the institution of mediation and find out its significance.

In addition, different models of mediation operate in a given country. It is interesting to know what is the experience of foreign countries in the field of mediation and how specific mediation is in these countries. At the end of 2019, Georgia adopted the Mediation Law, which proposed several general rules for conducting mediation. In this context, it should be clarified on what model the Georgian version of mediation is based - whether Georgia took into account the model of only one country, whether it shared a mixed model or formulated a specific rule for it.

The scientific article is also interesting in the protection of fiduciary relations in the process of mediation and new legislative changes. In this regard, it should be determined how fully the scope and possibilities of mediation have been studied and what role mediation plays in the process of resolving civil disputes.

1. Mediation models in a some foreign countries

In general, there are four models of mediation: 1. Fully voluntary mediation, when the parties turn to the mediator for any dispute that they could not resolve on their own. In this case, mediation does not require a law; 2. Voluntary mediation with certain incentives and sanctions. In this case, the parties are encouraged to use mediation, which is practice-oriented. This model requires a mediation law; 3. A mandatory initial mediation session, where the parties must attend an initial meeting with the mediator, free of charge or for a reasonable fee, to determine eligibility for mediation. This model also requires a legal framework for mediation; 4. Fully obligatory mediation. The parties must attend the mediation process and pay for the entire mediation process as a precondition for going to court. The mandatory aspect refers only to full participation in the process, while reaching a settlement is always voluntary. [1]

There are also broad and narrow models of mediation regulation.[2] In countries where mediation is widely regulated, the procedures are regulated in detail. These countries usually have a Mediation Law that broadly regulates issues related to the mediation process, as well as the relationship between mediation and other legal professions. This model is based on Austria, where the Civil Mediation Act is in force. France follows the same model, although in France the Civil Code, the Code of Civil Procedure, the Code of Criminal Procedure and the Labor Code directly deal with the mediation process.[3]

As for the narrow (limited) model, in this case the mediation process is not regulated in detail. This is due to the fact that the regulation of everything will hinder the development of the institution of mediation and limit it. In addition, mediation is an event that goes beyond the norms of civil procedural law, and its inclusion in its framework implies a limitation of the process. Countries that share this model do not establish procedural rules for mediation and obligations to train mediators, which are considered to be regulated by private initiatives.[4]

• Germany

The term "mediation" may come from the Greek word "medos" (meaning "mediator", "neutral", "impartial") and the Latin root verb "mederei" (meaning "to heal") or "mediatio" (to mediate). From this point of view, the mediator is the mediator who, through his impartial mediation, helps the parties to the dispute to resolve it. Mediation is an alternative dispute resolution method that was first scientifically substantiated in the United States in the 1960s and 70s by employees of Harvard University and has since been used in many areas of life. Mediation is a procedure or method characterized by the constituent principles of voluntariness, autonomy and openness to results and carried out by a neutral, objective mediator (mediator). In the modern scientific, differentiated understanding, the history of mediation begins in the 1960s and 70s, although the idea of resolving disputes through the mediation of a neutral third party as an intermediary has a thousand-year tradition of many peoples. Thus, mediation is not a new phenomenon of the 20th century; However, only in the last forty-fifty years has there been a scientifically based and differentiated discussion of this possibility of resolving disputes, primarily in the United States and then in Europe.[5]

In Germany, mediation has been used only in certain areas since the early 1980s, but today it applies to a wide range of disputes. Mediation is used, for example, in family law, building law, environmental protection, tenancy and neighborhood disputes, employment law, business, schools, intercultural and other disputes. Certain requirements must be met in some areas. For example, a mediator in school mediation requires special skills than in environmental or business mediation, although the same principles are, of course, always present in all disciplines. Therefore, in Germany mediation has developed in almost all social and public spheres as an alternative to the classical litigation, or at least as an alternative to “prior dispute resolution”, and in some cases has become firmly established. C0ompared to other countries such as Switzerland, Germany does not appear to have made a major effort to incorporate mediation rules into procedural law. In Switzerland, in the modern era, it was decided to reflect the rules on mediation in civil procedural law. In 2004, Austria passed the Civil Law Mediation Act, which gave Austria a pioneering role in the legal strengthening of mediation in the German world.[6]

The main reason for the introduction and promotion of mediation was to reduce legal costs in Germany. Along with other justice reforms, Germany introduced and developed the institution of mediation.[7] Thus, the emergence of the institution of mediation was, as it were, considered as part of the function of impementing justice.

Initially, there were three forms of mediation process in the federal state of Germany:

1) so-called "Gerichtsexterne Mediation" (Gerichtsexterne Mediation), which was perceived as a process completely independent of legal proceedings and launched on the basis of a private initiative;

2) so-called "Mediation in court" (Gerichtsnahe Mediation). Indeed, it is institutionally connected with the process taking place inside the court (administration of justice), but it is not independent of the court as a state institution;

3) Mediation within the court (Gerichsinterne Mediation), which was both personally and territorially connected with the court and the civil process.[8]

Alternative dispute resolution includes elements of both procedural and substantive law in Germany. From material law, the norms of general contract law are used. The new German Mediation Law, which shares the European Mediation Directive, came into force in July 2012.[9]

The German mediation law recognizes that the court does not have the right to refer an ongoing dispute to external mediation, but may refer a pending case to judicial mediation.[10] However, German law encourages the parties to reach an amicable settlement of the dispute and use litigation as a last resort. According to section 15a of the German Code of Civil Procedure, parties must first try alternative dispute resolution before starting legal proceedings. [11]

However, approaches to prioritizing the use of mediation differ across German states. For example, 20% of cases in the Keele District Court go to mediation. Out of 70% of such cases, an agreement between the parties is reached only in 15%. If we take other courts, then here the data is significantly reduced or mediation is not offered at all. It depends on the opinion of the judges. The vast majority of judges believe that they can independently resolve disputes and do not express a desire to submit disputes to mediation. However, at present, mediation in Germany is stagnant, since in court disputes are resolved quickly (5-9 months, and in mediation - about 3 months) and there is a dependence on traditional rules of legal proceedings. However, in many regions the demand for mediation is growing and the share of mediation among cases pending before the court is quite high (20%).[12]

• Lithuania

Lithuania has the Law “On the Use of Mediation in Civil Disputes”.[13] Here, the development of mediation has been driven by social peace, reduced litigation, consumer satisfaction, and time and cost savings. In Lithuania, parties and their lawyers are often offered to resolve civil or commercial disputes through mediation, especially in particularly complex cases. In 2019, the Lithuanian legislature empowered civil courts to require parties to attempt to resolve disputes through mediation when necessary. Compared with the data of 2015, when there were about 100 attempts to use mediation, official attempts to resolve disputes through mediation have already increased tenfold. Following the experience of Italy and other states, Lithuania took into account the obligatory nature of mediation in family cases, as well as the extension of the Lithuanian Law on Mediation to other cases.[14]

In addition, In 2005 a judicial mediation or settlement procedure was launched as a pilot in Lithuania. Summarizing the results of this program and the successes achieved with the support of the Ministry of Justice of the Republic of Lithuania, the Working Group was motivated to adopt the Judicial Mediation Rules in 2014, which entered into force on January 1, 2015. Judicial mediation applies to any civil case. According to statistics, in 2012, mediation was referred 17 times, in 2013 there were 37 such cases in mediation, in 2014 - 53, in 2015 - 123 and in 2016 - 313. The number of cases considered through mediation, doubled in recent years. If the parties agree to offer mediation, the mediator gives a written consent and the court has explained to the parties the essence of the mediation procedure, the judge must terminate the proceedings and refer the case to court mediation in Lithuania. The court also decides on the appointment or replacement of the mediator.[15]

• Latvia

In Latvia, the Mediation Law was adopted on May 22, 2014. The adoption of this law was a step towards the development of mediation in Latvia, and mediation became official. The law strengthened the basic principles of mediation: voluntariness, confidentiality, equality and cooperation of the parties, neutrality and objectivity of the mediator. In addition, the law determines that the mediation process begins from the moment a written agreement is signed with the mediator, which reflects the essence of the dispute, the rights and duties of the parties and the mediator. Upon completion of the mediation process, the mediator may approve the mediation agreement, which is legally binding.[16]

Mediation is regulated by general law in Belgium, Estonia, Malta and Sweden. The purpose of this law is to provide for the resolution of individual and collective labor disputes. In certain cases, the general law applies to civil cases. For example, in Estonia and Latvia, mediation is used between a patient or his relatives and a medical professional. In addition, mediation is also effective here in collective labor disputes, when disagreements arise between the management of the healthcare institution and the trade union. This also applies, for example, to Belgium, Estonia, France, Malta, Great Britain. However, in Estonia, Malta and the UK, mediation is relatively rarely used in individual labor disputes between employers and healthcare professionals.[17]

Mediation is not widespread in Latvia, but this does not mean that parties never choose mediation to resolve their disputes. At the same time, the popularity of mediation is growing. The model of self-regulation of mediation works effectively.[18] There are certain requirements for a mediator in Latvia, namely: the mediator must be at least 25 years old, have a good reputation and no criminal record, have a higher education in any field, be fluent in Latvian, and have completed at least 100 hours of mediation research. Mediation is carried out with the help of certain procedural measures in Latvia. Firstly, mediation in Latvia is not mandatory, but the court encourages a plaintiff in a civil process to consider mediation as a dispute resolution option - at least as a possible dispute resolution tool. Accordingly, mediation is purely voluntary, although its use is encouraged by procedural rules and measures.[19]

• Estonia

Mediation is the only way to resolve industrial (business) disputes in Estonia. Under these conditions, in 1995, the post of public mediator was created. Since its inception to the present day, the State Mediation Service has dealt with about 300 cases, 80% of which have been successfully completed.[20]

Mediation institutions are rarely used in Estonia. Here the law "On mediation" came into force on January 1, 2010. The Mediation Law covers both mediation and conciliation. If the court deems it reasonable and necessary, it directs the parties to participate in the mediation process, as provided for in Article 1.3 of the Mediation Law. The law covers civil disputes and does not contain a list of these cases. Accordingly, the law applies to civil cases without limitation. However, a mediation agreement here can come into force only when this agreement concerns claims related to property, and if it is not property, then when the parties reach a compromise on the subject of the dispute. The court does not have the right to approve the resolution of a dispute regarding the validity or termination of a lease agreement and the release of a place of residence located in Estonia.[21]

Mediation contract and mediation agreement are used in Estonia. Mediation agreement can be certified by the notary to whom the parties apply. When parties have signed the mediation agreement, they are obliged to act in accordance with this agreement. Thus, this agreement contains elements of a binding legal agreement, in particular, it creates both the obligation of one party (the debtor) to perform certain actions, and the right of the other party (entitled person or oblige) to demand the performance of the action by the counterparty. The notary certifies the mediation agreement, if the parties ask for it. In case of failure to comply with the conditions, the parties must take the case to the country court. As regards financial matters, in order for the mediation agreement to be enforceable, it must be accepted by district court.[22]

2. Georgian model of mediation

Georgia took into account international experience and determined that it is necessary to develope and strengthen mediation, which ensures the release of the court from cases. The purpose of mediation is to help the parties resolve the dispute by mutual agreement, quickly and efficiently. Mediation will increase the efficiency of justice and save the court from cases where there is a possibility of ending the dispute by agreement of the parties. However, mediation is a flexible process that, together with the court and arbitration, emphasizes the particular importance of mediation in achieving a common goal.[23]

The legislator in Georgia, on the one hand, listed the cases to which judicial mediation is applicable, and on the other hand, established the possibility of extending mediation to any dispute if there is the will of the parties. According to the law, court mediation in Georgia is used for a) family disputes, except for adoption, cancellation of adoption, cancellation of adoption, restriction of parental rights, imprisonment, violence against women and/or domestic violence; b) on inheritance disputes; c) on neighborly disputes; d) on labor disputes, with the exception of collective disputes; on cases of realization of shared rights; e) property disputes, if the value of the subject matter of the dispute does not exceed GEL 2,000; f) on non-property disputes, g) also on any other dispute if there is an agreement between the parties (Part 1 of Article 187³ of the Civil Code). In fact, the legislator recognized the priority of the will of the parties and made their agreement the basis for considering any dispute through mediation.

An association agreement was concluded between the European Union and Georgia, under which Georgia assumed the obligation to develop alternative means of dispute resolution, especially mediation and arbitration, and create appropriate conditions for their use. With the adoption of the law "On Mediation", its main goal was to ensure precisely this requirement. On January 1, 2020, the Law of Georgia “On Mediation” came into force, according to which mediation is considered a new means of resolving civil disputes.[24]

The 2008 European Union Mediation Directive contains certain key features of civil and commercial mediation[25] for all Member States. It is significant that in most EU Member States there are two or three models of mediation, depending directly on the nature of the dispute. For example, mediation of civil and commercial disputes is based on a completely voluntary model in Belgium, Greece, Estonia, Germany, Saftang, Latvia and other countries. However, voluntary mediation with incentives and/or sanctions is also found in Estonia, Greece, Italy (in 92% of civil and commercial disputes), Malta and other countries.[26]

Georgian legislation recognizes both judicial and private mediation. The case is considered by judicial mediation in the event that a claim is filed with the court and the case is transferred to the mediator in the manner prescribed by civil procedural legislation (“Article 2, paragraph “b” of the Law “On Mediation”). According to the law, the period for considering a case in judicial mediation is 45 days, but at least two meetings must be held.It is allowed to extend this period for the same period only if there is an agreement between the parties.[27] The issue of timing was especially relevant during the pandemic.

The court proceedings have been going on for many years, and if, due to the coronavirus, the case cannot be resolved without an oral hearing, the court decides to postpone the meeting. Thus, the trial is dragged out, and the postponement of the consideration of the case leads to the fact that the resolution of the dispute is extended for a certain period and the tense background between the parties increases. In many ways, this negatively affects the business sector, as it can lead to negative economic consequences. The negative economic impact during the pandemic has been particularly noticeable in various countries.[28] Prolonged litigation is a prerequisite for increasing property damage. For example, if a business entity is waiting for the results of a court hearing to carry out certain business transactions and continue business activities, lengthy processes increase the losses caused to it. At the same time, during this period, its economic image is slowly depreciating.

Private mediation is based on the initiative of the parties to agree on mediation without the court referring the case to the mediator (“Art. 2, paragraphs “b” and “c” of the Mediation Law). Thus, private mediation is a free process for the parties and is dispositional in nature.

Usually the court has discretionary power to recommend that the parties use mediation only if they believe that this procedure can lead to positive results (Germany, Lithuania, Poland, Romania, Sweden, United Kingdom).[29]  As in other countries, the initiation of private mediation, as defined by the Law of Georgia on Mediation, entails the suspension of the statute of limitations.[30] Thus, with the start of private mediation, the limitation period for a claim will be suspended.[31]

3. Advantages and disadvantages of mediation


4. Advantages of Mediation

Business entities point to the many advantages of using mediation. In this case, it means realizing the potential benefits of mediation. These benefits include: 1. Unlike the risks and uncertainties of litigation and arbitration, the parties have constant control over the process and outcome of dispute resolution; 2. individualization of dispute resolution and process management; 3. Confidentiality; 4. improve communication; 5. cultural, cross-border bridge; 6. Consideration of commercial realities; 7. Cost saving and cycle time reduction; 8. Creative and reliable solutions; 9. maintain or strengthen current relationships; 10. Poor quality of costs and risks compared to potential benefits.[32]

Some of them are reflected in the principles of mediation. These are: Voluntariness of the parties, impartiality and independence of the mediator, control of the process by the parties and confidentiality.[33] In addition, mediation must protect the principles of self-determination, conscientiousness and equality of parties.[34]

• Neutrality and impartiality of the mediator

One of the reasons for using mediation is that an experienced neutral person (mediator) can contribute to both the quality of the exchange of information and its quantity to resolve the dispute. Relevant information may increase the chances of resolving the dispute on the terms preferred by the parties.[35] Only the judge decides the fate of the case in court. With regard to mediation, in this case, the focus is on communication, which is carried out by a third neutral person in the form of an mediator.[36] The role of the mediator is well expressed in facilitating direct communication, but the mediator should not be a trusted advisor, but a neutral person. The parties trust the mediator precisely because his role is neutral.[37]

Unlike litigation, communication between the parties during mediation is not based on the expectation that they will contact again later. The use of information transmitted as a result of such negotiations may unfairly cause harm. In this process, the mediator is neutral and impartial.[38] While his belief in impartiality is reinforced by the confidentiality and trusting environment of mediation, the mediator is required to take sides and remain neutral.[39]

• Saving financial costs and time

In the course of lengthy and high-profile litigation, the commercial interests of business entities may be affected.[40] Currently, mediation has a special role because it is a cheap and effective means of resolving disputes.[41]

Thus, the cost-effectiveness of mediation is another of its attractive features. Mediation is cost effective. First, mediation takes less time than other dispute resolution methods. By saving time, the parties minimize costs such as loss of revenue and business opportunities.[42] It is also important for the business sector to resolve the dispute at a relatively low cost. In this sense, the model of mediation in the form of incentives and/or sanctions is relevant. Concessions often come in the form of financial incentives for parties who reach an agreement after mediation. The role of such a stimulator is played, for example, by the reimbursement of legal costs in Slovakia and Estonia, or the reimbursement of certification costs in Bulgaria and Latvia.[43] Thus, one of the motivating circumstances for concluding a mediation agreement is the return of the state fee (fee) or part of it. In Lithuania, there is a similar experience of encouraging parties to conclude an agreement, where the plaintiff, who has concluded the so-called “Peace Agreement”, is returned 75% of the state duty.[44]

A similar approach is shared in Georgia. Namely, in case of judicial mediation, the state fee should be 1% of the value of the subject of the dispute, but not less than 50 GEL. If the dispute is not resolved by agreement of the parties, the case is resumed in court and the plaintiff is additionally ordered to submit a receipt confirming the payment of 2% of the cost of the subject of the dispute, but not less than 50 GEL.[45]  However, if the parties reach an agreement during the trial, 70% of the state duty paid by the plaintiff is returned to the plaintiff by law.[46]

If a party considers mediation to be a waste of time and money, it can terminate negotiations at any time and apply to arbitration or court. The fact is that mediation is an opportunity to save time and money not only for the parties, but also for the rule of law, which allocates significant resources to conduct lengthy litigation.[47]

• Maintaining the relationship between the parties and a stress-free environment

One of the advantages of mediation is the maintenance of family and other permanent relationships. Family relationships that arise during wills, trusts, and guardianships can be irreparably damaged by lengthy litigation. By listening to the parties in mediation, trust can be restored, not only to resolve the current dispute, but also to prevent future problems.[48]

Mediation is especially beneficial when the parties have an ongoing relationship that must continue after the dispute is resolved, since the agreement was reached with their consent and neither party should have reason to consider themselves losers. Mediation gives the parties to the dispute the opportunity to maintain existing relationships through mutually beneficial dispute resolution and thus build strong long-term business relationships. Mediation is increasingly being used in long-term contracts, especially in international infrastructure and construction contracts, where mediators are appointed to quickly resolve issues between the parties. Thus, mediation is especially useful if the parties wish to continue a business relationship that could be damaged by aggressive litigation or arbitration. Thus, the use of mediation may be reasonable when it is possible to maintain an ongoing relationship.[49]

The mediator helps the parties avoid the polarized perception that he is the victim and the other party is the villain; The mediator tries to contribute to a more productive and expanded discussion of controversial issues. At the same time, mediation provides the parties with an opportunity to acknowledge their differences and the contributions that both parties have made to the dispute between them. Mediation encourages parties to focus on the future, not just the past. This allows them to go beyond a simple distribution of blame (which often does not lead to any specific outcome for the other party) and solve their future problems.[50]

At the same time, the mediator focuses on the positive aspects of the relationship between the parties, which helps to reduce the existing tension between them. Mediation may involve face-to-face meetings of the parties, however, if the parties do not wish to speak frankly in the presence of all participants, the mediator may meet with each party individually, respecting the principle of confidentiality. The mediator may need to meet with the parties individually to obtain additional information or explore alternatives. In these meetings, the parties are given the opportunity to let go of the situation, calm down and avoid future tension in the relationship, and also prevent one party from manipulating the other.[51]

Mediation ensures that the current relationship between the parties is maintained. Compared to mediation, a party in a lawsuit tries to justify its own position, thereby nullifying and rejecting the opinions of the other party in order to prove them unfounded. The confidentiality of mediation creates such a calm environment for the parties that the parties can objectively assess the moments unfavorable for their position and negotiate with positive expectations. When considering a dispute in court, the relationship between the parties, as a rule, is tense and negative.[52]

• Confidentiality of mediation

Unlike the court, the mediation process will be conducted with maximum confidentiality.[53] Confidentiality provides the parties with a confidential environment for negotiations,[54] which allows them to openly and comprehensively discuss all the material circumstances of the case. In the case of confidentiality, the parties are willing to disclose information because they believe that information disclosed during the mediation process will not be used against them.[55] This is why confidentiality is vital to mediation. Confidentiality prevents the parties from using information obtained during mediation to harm the other party, thus paving the way for a constructive relationship between them and a relatively safe environment for interactive negotiations. [56]

Confidentiality in mediation helps parties to share information, resolve issues, and negotiate focused on their best interests.[57] The legal obligation to protect confidentiality continues even after the completion of the mediation process, unless otherwise regulated by written agreement between the parties and the mediator.[58]

Confidentiality gives organizations an incentive to choose mediation, for example when protecting commercial secrets. Mediation is considered the main motivator of the party as it wants to settle the dispute quietly and without publicity.[59] Therefore, the confidential nature of the mediation process encourages businesses to resort to dispute resolution through mediation.[60] When resolving a dispute through mediation, the decision about who was “right” and who was “wrong” is not public. This can be a key factor in a complex business environment for a number of reasons. The fact is that the business environment can have an impact on subsequent business operations, reputation and more.[61]

Confidentiality in commercial relations is of paramount importance to the parties. If a third party has information that there is a commercial relationship between the parties and the dispute involves a particularly large amount, disclosure of this information may damage its reputation and business relations in the market, or both parties may not want to disclose confidential information.[62] Data must be processed in strict accordance with the rules established by law, damage may entail an obligation to compensate.[63]

During the mediation process, the parties agree to non-disclosure of the information provided, however, the privilege of confidentiality also has certain exceptions.[64] In fact, Georgia took into account the European experience and recognized by law exceptional cases of restricting the confidentiality of the mediation process. One of them is the case when it is necessary to protect the life, health or freedom of a person or the interests of a minor (Article 4). And in these cases, the disclosure of information should be based only on the principles of an adequate and proportional distribution of the legal purpose in such a way as to protect the confidentiality of information from unauthorized persons to the maximum.[65]

• Self-determination of the parties and focus on their personal interests

The voluntary (rather than mandatory) nature of mediation is especially attractive to the parties when the decision to start mediation and participate in the mediation process is entirely up to the parties.[66] Mediation is an absolutely voluntary process that automatically determines the ability of the parties to the dispute to understand well what kind of conflict they have with the other party, in what form they intend to resolve the dispute.[67] The scope of self-determination and decision-making of the parties may be limited by the normative norm on the inadmissibility of an unfair outcome of mediation. The realization of the interests of the parties is allowed on the basis of their right to self-determination to the extent that the interests of third parties are not violated.[68] The result of a fair mediation is what the parties decide within their self-determination. Thus, the duty of the mediator is mediation based on the principle of self-determination of the parties in order to achieve a fair result.[69]

It is important that all plaintiffs are heard by sympathetic and wise lawyers, and that the parties feel that they have their “day in court”. The mediator fulfills this role and allows the disenfranchised party to receive cathartic relief in front of an educated professional, such as an arbitrator, who otherwise resolves the dispute.[70]

The mediator's tool is to identify real positions and interests, while the court is looking for facts. Unlike litigation, mediation can be a conflict between "rules of law" and "person-centered norms".[71] The court and the lawyer attach only secondary importance to the norms based on the person, so the litigation and the negotiations of the lawyer are rational and regulated. Mediation is more responsive to personal norms and values.[72]

• Flexibility and informal nature of mediation

One of the fascinating aspects of mediation is its extreme flexibility. The mediator offers economic entities various options for resolving disputes, however, the range of options for resolving disputes can be limited only by the desire of the parties and the creative approach of the mediator. However, any number of communication tools can be used during mediation. For example, experienced resellers regularly use telephone and email, as well as intranet technologies. However, it is possible to use many other means by which the parties in the mediation process are provided with information that provides an objective basis for negotiations. When resolving business disputes, the mediator is assigned the role of an intermediary, within which he can manage disputes, develop and think through various innovative mediation processes.[73]

Compared to court, mediation is an informal process among alternative dispute resolution mechanisms. During mediation, the mediator acts as a third neutral party who helps the two disputing parties communicate and negotiate. The mediation process is based on the common interests of the parties and the peaceful resolution of the dispute.[74] It is up to the judge to make a decision, and it is not mandatory to reach a final agreement during mediation. However, if a mediation agreement is reached, this result is the decision of the parties and therefore represents the interests of both parties.[75]

In mediation, the business sector is particularly attracted by the fact that in this procedure it is not limited by any obligations.[76] The consideration of the case in court is limited by the consequences of a strictly prescribed alternative legal possibility. Mediation gives the parties the opportunity to work out a solution that reflects their needs without regard to technical legal principles. Parties can achieve results that go beyond a typical court order. The flexibility of mediation also gives the parties the opportunity to work out a solution that they believe is “fair” and more likely to be in their best interests than would be the case with a formal court decision.[77]

During mediation, the parties may establish their own rules and procedures. They generally prefer to forego the formalities associated with other forms of dispute resolution. For example, mediation is much less formal than arbitration. However, although the mediation process is very structured, the parties are free to waive the formalities.[78]

Mediation is carried out in stages (stages). The idea of classifying into phases is interesting, but it should not be taken literally. If the mediator informs the parties that they are now moving into a new stage of mediation, it is unlikely that this will make a positive impression on the parties and will contribute to reaching an agreement. The mediator must follow this scheme, although it would be irrational to strictly adhere to it, if, for example, new information appears during the dispute, the mediator should not refuse to familiarize himself with its details and discuss it with the parties, since he has already passed the so-called "information phase" and arguments. Listening to new information during a presentation is wrong. This is considered to be an overly "procedural-legal" approach that will only harm the mediation process. The fact is that mediation is a party process, not a mediation process. When a party knows that during mediation it can say whatever it wants, it will not be clear to it why it should submit to the theory of phases, if the information voiced from its point of view is very important for clarifying the essence of the case.[79]

• A wide range of decisions

The biggest advantage of mediation is that it allows decisions to be made that go beyond the legal consequences. Mediation can become a universal forum that can potentially resolve all issues (legal and non-legal). If a party wants an outcome other than a simple payment of money or something other than a remedy that the court will order, mediation has the ability to negotiate an unlawful, creative or commercial solution. In many cases, the resolution of legal issues does not in itself lead to the effective resolution or final termination of the dispute between the parties. Mediation can offer parties a wide range of benefits that go beyond resolving disputed legal issues. For example, talking and listening to each other about their problems creates an opportunity for mutual opinion and a better understanding of their needs (interests). This can minimize the likelihood of future disputes, or at least lead to greater recognition of the existing dispute and identification of the causes of the dispute. Such discussions, judiciously conducted by the mediator, can also improve and sometimes restore communication between the parties. In this process, the parties continually try to deal with issues in a respectful manner, which can enhance their ability to resolve disputes with others in the future.[80] 

Mediation offers businesses a wide range of protections. Long-term structured payment plans and annuities (forms of loan repayment) can be offered, allowing parties to be more creative with economic outcomes.[81] At the same time, mediation gives the parties to the dispute the opportunity to identify a wide range of creative solutions to the problem. The Court may not always be able to fully explore the factors underlying the dispute. During mediation, the parties are free to expand on the issues under discussion and look for the root causes of the dispute.[82] Because mediation is not strictly limited to relevant issues, this process can also lead to the resolution of issues that could lead to unnecessary litigation in the future.[83] In fact, mediation also appears to help prevent unwanted disputes in the future.

• Control over the process and the result by the parties

The role of the parties in the mediation process is special. This also manifests itself at the stage of choosing a mediator before the start of mediation. In addition, the mediation process may be conducted by one or more mediators. However, the parties by agreement determine who should be the mediator, except as otherwise provided by law.[84] Mediation is considered an adjunct to justice, not an alternative to it. He can only contribute to the elimination of disputes, but he cannot completely take it upon himself.[85] In fact, three elements of the principle of voluntariness stand out: (1) parties should not be forced to participate in mediation; (2) the process must always be under their joint control; and (3) the results must be freely agreed upon by the parties.[86]

Business entities do not lose control of the process, and no one needs to tell business firm managers that they must manage corporate affairs in order to maximize benefits for the company's statutory groups, shareholders, employees, and society. Litigation may not consider face-to-face negotiations successful because they are based on pre-established framework rules, while mediation resolves tensions. When the mediator takes control of the negotiation process, he ensures that the parties can control the outcome.[87] Thus, mediation further expands the scope of dispute resolution methods.

In the process of mediation, the parties retain a great deal of control over the process and outcome of the case. During mediation, the parties make their own decision and therefore may have a greater interest in its success.[88]

• Mutually beneficial (the so-called "Win-Win situation")

The court conducts a process, the result of which is always beneficial for one party and disadvantageous for the other. As for mediation, it is a win-win process for both parties. This is especially true for family or neighborhood mediation.[89] Therefore, unlike the judicial and arbitration process, mediation involves a process focused on mutual benefit.[90]

Richard Hill gave an example of an orange on the merits of mediation: The parties' dispute is about an orange. Both parties claim to be entitled to for-tohal. There are two options for resolving the dispute in arbitration: either only one party will receive the orange (the other will have nothing left), or both parties will share the orange. In mediation, negotiations focus on the interests of the parties rather than their rights, and these negotiations may reveal that one party wants to use the orange peel to make perfume, while the other party wants to use the pulp to make orange juice. Thus, mediation gives the parties the opportunity to share the oranges in a mutually beneficial way.[91]

Mediation is about business interests, practical considerations and the search for mutually beneficial options. Mediation often provides distinct advantages over face-to-face meetings without an intermediary. The mediator listens, suggests, guides, assists, checks reality, and explores mutually beneficial options.[92]

• Disadvantages of mediation

The following circumstances are considered to be negative aspects of mediation: a) the parties to the dispute must express their readiness to communicate and resolve the dispute; b) If one of the parties is in bad faith, it can use mediation to drag out the dispute.[93] In this case, the parties cannot reach a mediation agreement, in connection with which the case continues to be considered in court; c) If the mediation process is regulated in too much detail, it loses its negotiation character. However, this distinguishes mediation from litigation and other alternative forms of dispute resolution; d) Compliance with mediation can lead to the “privatization” of justice and the administration of justice by private individuals, which poses a threat to the normal functioning of the legal system. However, the position mentioned is probably more hypothetical and can be explained by less awareness of mediation.[94] e) Mediation hinders the development of law and judicial practice.

However, it is possible that the relatively stronger side of one side can outperform the weaker side at the expense of the potential of the other side. For example, mediators should be especially careful when an older family member is a party to a dispute, as the older person may have some limited legal capacity or be unable to fight for their interests due to social conditions. On the other hand, older people are often inflexible and confused,[95] so they can be classified as a vulnerable group.

Despite the disadvantages of mediation, its advantages are much more significant and weighty. Among other things, mediation focuses on the real interests of the parties, provides an opportunity to make a fair decision that reflects their point of view, and frees the judicial system from cases.[96]

Conclusion

The study shows that mediation is of particular interest to business entities. The use of the institution of mediation to resolve civil disputes is due to the fact that it takes into account the interests of the parties as much as possible when reaching an agreement.

Mediation is attractive to the business sector for several reasons. Compared to litigation, mediation is a cheaper, faster, more confidential, calmer and more efficient process. At the same time, confidentiality leads to increased confidence of the parties in mediation. The purpose of confidentiality in mediation is to ensure the protection of confidential data disclosed by the parties and to maintain an ongoing relationship. Confidentiality also helps to preserve the entrepreneurial image of entrepreneurs.

What is particularly attractive to the business sector is that mediation is flexible and informal, giving the parties wide discretion. Mediation prevents the aggravation of relations between the parties and is not limited to the issues under discussion, as well as the development of means or methods that ensure the resolution of the dispute. Mediation is aimed at the self-determination of the parties and the identification of personal interests. In addition to the neutrality and impartiality of the mediator, the parties control the process and outcome of the mediation. In fact, it involves conducting the mediation process in a way that benefits both parties. Mediation is no less remarkable in terms of saving financial and time resources. These circumstances are important for everyone, especially for the business sector, as they have a negative impact on their activities and can cause negative economic consequences. Thus, business disputes need to be resolved as soon as possible to avoid major negative consequences.

A brief overview of Germany and other countries showed that interest in mediation is growing. Its attractiveness is dictated precisely by the positive factors of mediation, which contribute to a calm, thoughtful, relatively cheap and short-term dispute resolution based on the common interest of the parties. Georgia has taken into account European approaches to mediation, has established rules governing the mediation process, and a flexible system that is maximally adapted to the interests of the parties and includes general principles for the consideration of cases (without detailed regulation). This paved the way for the development of the institution of mediation. True, “Mediation” also has negative qualities, but the balance will undoubtedly be tipped towards its advantages. It is therefore necessary that a larger section of society be made aware of these benefits of mediation so that more people can take advantage of the benefits of mediation to resolve their disputes amicably.

Bibliography

Normative Materials:

1. Law of Georgia "On Mediation", 2019 September 18, N4954-Is. (in Georgian)


2. Civil Code of Georgia (CPC), 1997 June 26, N786-IIs. (in Georgian).


3. Civil Procedure Code of Georgia (CPC), 1997 November 14, N1106-Is. (in Georgian).


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6. Directive 2008/52 of the European Parliament and of the Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters. (in English).


7. Law on Conciliatory Mediation in Civil Disputes of Republic of Lithuinia, 15 July 2008 – No X-1702. (in English).

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9. Bichia, M., (2021). The Importance of Using Mediation in Business Disputes During a Pandemic, “Herald of Law”, №3, 10. DOI: 10.15350/26679434/H.3.1 (in Georgian).


10. Bichia, M., (2020). Legal Regime of Confidentiality Protection in the Mediation Process and Its Meaning, Journal “Law and World”, 6(2), 199-200. https://doi.org/10.36475/6.2.15 (in Georgian).


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13. Gniza, I., (2017). Practical experience and perspectives in the field of judicial mediation in Germany, in Proceedings of the International Conference of the Associations of Judges of the Signatory Countries of the Memorandum: "Evaluation of Judges' Performance, Court Mediation and Juvenile Justice", 70-72. (in Georgian).


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23. Callahan,, (2012). Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality be a Function of the Court in Which the Litigation is Pending? Perpperdine Dispute Resolution Law Journal, Vol. 12: 63, p. 96. (in English).


24. Clarke, G. R., Davies, I. T., (1991). ADR – Argument for and Against use of the mediation process particularly in Familu and neighbourhood disputes, QLD. University of Technology law Journal, 7, p. 84, <https://lr.law.qut.edu.au/article/view/343/335/view.html> [17.08.2023]. (in English).


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26. Deason, E. E., (2002). Predictable Mediation Confidentiality in the U.S. Federal System, Ohio State Journal onDispute Resolution, Col. 17, No.2, p. 245. (in English).


27. De Palo, , D’URSO, L., (2016). In: “The Implementation of the Mediation Directive, Workshop”, Research Administrator Responsible: Raffaelli R., p. 12. (in English).


28. Dursun Al (2017). The Principle of Confidentiality in Mediation and the Rols of Confidenciality In Commercial Mediation, Afro Eurasian Studies Journal, Volume 6, Issue 1&2, Spring & Fall, pp. 18-19. (in English).


29. Espilugus,, Iglesias, J. L., Palao, G., (2013). Civil and Commercial Mediation in Europe: National Mediation Rules and Procedures, Vol. I, Intersentia, Cambridge, p. 162. (in English).


30. Fedorchuk, , (2020). Mediation: The Experience of Latvia, “Mediation: Training and Society Transformation/MEDIATS” of EU Program, <https://mediats-chnu.com/mediation-the-experience-of-latvia/> [22.07.2023]. (in English).


31. Feinberg, K. , (1989). Mediation - A Preferred Method of Dispute Resolution, Pepperdine Law Review, Vol. 16, Iss. 5, S7-10. (in English).


32. Hardy, S., Rundle, O., (2010). Mediation for Lawyers, Australia, pp. 9-10. (in English).


33. Hill, , (1995). Non-adversarial Mediation, Journal “International Arbitration”, 12(4), p. 135. (in English).


34. Hill, R. (1998). The theoretical Basis of Mediation and other Forms of ADR: Why they Work, Arbitration International, 14(2), p. 181. (in English).


35. HOPE - European Hospital and Healthcare Federation. 2012. Mediation in Healthcare, 7-9. (in English).


36. Hopt, J. K., Steffek, F., (2013). Mediation Principles and Regulation im Comparative Perspective, Oxford, p. 17. (in English).


37. International Labour Office, (2007). Collective Dispute Resolution through Conciliation, Mediation and Arbitration: European and ILO Perspectives, Geneva, p. 16, <https://www.ilo.org/wcmsp5/groups/public/---europe/---ro-geneva/documents/meetingdocument/wcms_366949.pdf> [03.7.2023]. (in English).


38. Kelly,, Holmes, A., Hayward, R., (2005). Business Law, 5.th ed., London, pp. 95-96. (in English).


39. Owen v. Gray (1998). Protecting the Confidentiality of Communications in Mediation, Osgoodehalll Law Journal, vol. 36, november 4, p. 6 (in English).


40. Lawrence R. Freedman, Michael L. Prigoff, (1998), Confidentiality in Mediation: The Need for Protection, Journal On Dispute Resolution, Vol.2:1, 37-38. (in English).


41. Lewinski-Reuter V., Mediation, In: Glossar Kulturmanagment, V. Lewinski-Reuter, S. Lüdemann (Hrsg.)., Wiesbaden, 2011, S. 254-255. (in German).


42. Macturk, H., (1995). Confidentiality in Mediation: The Best Protection has Exception, „American Journal of Trial Advocacy“, Vol. 19, pp. 412, 415, 425-426. <http://heinonline.org/HOL/Page?handle=hein.journals/amjtrad19&div=25&g_sent=1&casa_token=&collection=journals> [12.02.2022]. (in English).


43. Petsche, M., (2013). Mediation as the preferred method to solve international business disputes? A look into the future, RDAI/IBLJ, N4, p. 253. (in English).


44. Piers, M., (2014). Europe’s Role in Alternative Dispute Resolution: Off to a Good Start? Journal of Dispute Resolution, No. 2, p. 287, 291. (in English).


45. Posin, D. Q., (2004). Mediating International Business Disputes, Fordham Journal of Corporate & Financial Law, Vol. IX, p. (in English).


46. Radford, M. F., (2001). Advantages and Diadvantages of Mediation in Probate, Trust, and Guardianship Matters, Pepp. Disp. Resol. LJ, Vol. 1, pp. 244-245, 247, 249. (in English).


47. Shapira, O., (2012). Conceptions and Perceptions of fairness in Mediation, South Texas Law Review, Vol. 54, p. 336. (in English).


48. Simaitis, R., (2020). A new wave of Mediation in Lithuania – What does it mean for Lawyers, CEE Legal Matters, 29 April, <https://ceelegalmatters.com/lithuania/13402-a-new-wave-of-mediation-in-lithuania-what-does-it-mean-for-lawyers> [25.08.2023]. (in English).


49. Stipanowich,, (2004). Why Businesses Need Mediation, Legal Studies Research Paper Series, Commercial Mediation in Europe, p. 12. (in English).


50. Sussman,, (2010). The Advantages of Mediation and the Special Challenges to its Utilization in Investor State Disputes, Revista Brasileira de Arbitragem, Vol.7, no. 27, p. 57. (in English).


51. Tarman, Z. D., (2016). Mediation as an Option for International Commercial Disputes, In: Annales de la faculté de Droit d’Istanbul, Vol. 48, No. 65, pp. 232-233. (in English).


52. Tochtermann,, (2013). Mediation in Germany: The German Mediation Act – Alternative Dispute Resolution at the Corossroads, in Hopt&Steffek, Mediation Principles and Regulation in Comparative Perspective, Oxford University Press, Oxford, p. 538. (in English).


53. Tvaronaviċlenė, A., Kaminskienė, N., Rone, D., Uudekull, R., (2022). Mediation in the Baltic States: Developments and Challenges of Implementation, Access to Justice in Eastern Europe, Vol. 4, No. 16, pp. 76-77, https://doi.org/10.33327/AJEE-18-5.4-a000427 (in English).


54. Wykoff,, (2016). Mediation & Confidentiality, „Bond University Student Law Review“, Vol. 4, p. 5. (in English).


55. Zhao, Y., Koo A.K.C., (2011). The Development of Legal Protection for Mediation Confidentiality in Hog Kong. „Common Law World Review“, p. 264. <http://heinonline.org/HOL/Page?handle=hein.journals/comlwr40&div=17&g_sent=1&casa_token=&collection=journals> [11.02.2020] (in English).


56. Baturina, N.A., (2016). Foreign Experience of Legal Regulation of the Mediation Procedure, In the Collection of Materials of the I All-Russian Scientific and Practical Conference with International Participation (Saratov, December 4, 2015): “Prospects for the Formation and Development of Mediation in the Regions”, Saratov, p. 23. (in Russian).


57. Shumova, K. A., (2015). Principles of mediation, Dissertation, Saratov, 68. (in Russian).

Links:

58. https://ceelegalmatters.com/lithuania/13402-a-new-wave-of-mediation-in-lithuania-what-does-it-mean-for-lawyers


59. <https://iclg.com/cdr/litigation/pirkka-marja-poldvere-aivar-pilv> [20.08.2023].


60. <https://bm.ge/ka/article/2020-wlidan-saqartveloshi-mediaciis-shesaxeb-kanoni-amoqmeddeba/42734> [20.07.2023].

Footnotes

[1] De Palo, G., D’URSO, L. (2016). In: “The Implementation of the Mediation Directive, Workshop”, Research Administrator Responsible: Raffaelli R., p. 11. (in English).

[2] Hopt, J. K, Steffek, F. (2013), Mediation Principles and Regulation im Comparative Perspective, Oxford, p. 17. (in English).

[3] Kandashvili, I. (2020). Mediation (an effective alternative means of dispute resolution), Tb., pp. 61-62. (in Georgian).

[4] Ibid, p. 63.

[5] Lewinski-Reuter V., Mediation, In: Glossar Kulturmanagment, V. Lewinski-Reuter, S. Lüdemann (Hrsg.)., Wiesbaden, 2011, S. 254. (in German).

[6] Lewinski-Reuter V., Mediation, In: Glossar Kulturmanagment, V. Lewinski-Reuter, S. Lüdemann (Hrsg.)., Wiesbaden, 2011, S. 255. (in German).

[7] Espilugus, C., Iglesias, J. L., Palao, G. (2013). Civil and Commercial Mediation in Europe: National Mediation Rules and Procedures, Vol. I, Intersentia, Cambridge, p. 162. (in English).

[8] Tsertsvadze G., Mediation - an alternative form of dispute resolution (general overview), Tb., 2010, p. 105. (in Georgian).

[9] Piers, M. (2014). Europe’s Role in Alternative Dispute Resolution: Off to a Good Start? Journal of Dispute Resolution, No. 2, p. 287. (in English).

[10] Tochtermann, P., (2013). Mediation in Germany: The German Mediation Act – Alternative Dispute Resolution at the Corossroads, in Hopt&Steffek, Mediation Principles and Regulation in Comparative Perspective, Oxford, p. 538. (in English).

[11] Piers, M., (2014). Europe’s Role in Alternative Dispute Resolution: Off to a Good Start? Journal of Dispute Resolution, No. 2, p. 291. (in English).

[12] Gniza, I., (2017). Practical experience and prospects in the field of German judicial mediation, in the materials of the International Conference of Associations of Judges of the Member States of the Memorandum: “Evaluation of the performance of judges, judicial mediation and juvenile justice”, pp. 70-72. (in Georgian).

[13] Law on Conciliatory Mediation in Civil Disputes of Republic of Lithuinia, 15 July 2008 – No X-1702. (in English).

[14] Simaitis, R., (2020). A new wave of Mediation in Lithuania – What does it mean for Lawyers, CEE Legal Matters, 29 April, https://ceelegalmatters.com/lithuania/13402-a-new-wave-of-mediation-in-lithuania-what-does-it-mean-for-lawyers (in English).

[15] Gadlyauskas, R., (2017). Mediation in Lithuania, in the materials of the International Conference of Associations of Judges of the Member States of the Memorandum: “Evaluation of the activities of judges, judicial mediation and juvenile justice”, pp. 102-103. (in English).

[16]  Fedorchuk, M., (2020). Mediation: The Experience of Latvia, “Mediation: Training and Society Transformation/MEDIATS” of EU Program, <https://mediats-chnu.com/mediation-the-experience-of-latvia/> [22.07.2023]. (in English).

[17] HOPE - European Hospital and Healthcare Federation (2012), Mediation in Healthcare, pp. 7-9. (in English).

[18] Bertaitis, S., Marjusina, R., Olevska, I., In: Palo de G., Trevor, M. B., (Ed.) (2012). EU Mediation, Law and Practice, Oxford, pp. 218-219. (in English).

[19] Tvaronaviċlenė, A., Kaminskienė, N., Rone, D., Uudekull, R., (2022). Mediation in the Baltic States: Developments and Challenges of Implementation, Access to Justice in Eastern Europe, Vol. 4, No. 16, pp. 76-77, https://doi.org/10.33327/AJEE-18-5.4-a000427 (in English).

[20] International Labour Office, (2007). Collective Dispute Resolution through Conciliation, Mediation and Arbitration: European and ILO Perspectives, Geneva, p. 16, <https://www.ilo.org/wcmsp5/groups/public/---europe/---ro-geneva/documents/meetingdocument/wcms_366949.pdf> [03.7.2023]. (in English).

[21] <https://iclg.com/cdr/litigation/pirkka-marja-poldvere-aivar-pilv> [20.08.2023]. (in English).

[22] HOPE - European Hospital and Healthcare Federation (2012). Mediation in Healthcare, pp. 19-20. (in English).

[23] Explanatory card of the law "On Mediation", registration N07-2/319/9. (in Georgian).

[24] <https://bm.ge/ka/article/2020-wlidan-saqartveloshi-mediaciis-shesaxeb-kanoni-amoqmeddeba/42734> [20.07.2023]. (in Georgian).

[25] Directive 2008/52 of the European Parliament and of the Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters. (in English).

[26] De Palo G., D’URSO L., (2016). In: “The Implementation of the Mediation Directive, Workshop”, Research Administrator Responsible: Raffaelli R., p. 16. (in English).

[27] 187⁵  Article, Civil Procedure Code of Georgia, 1997 (in Georgian).

[28] See Bichia, M., (2021). The Importance of Using Mediation in Business Disputes During a Pandemic, “Herald of Law”, №3, p. 10. . DOI: 10.15350/26679434/H.3.1 (in Georgian).

[29] Shumova, K. A., (2015). Principles of mediation, Dissertation, Saratov, p. 68. (in Russian).

[30] Paragraph G¹ of Article 132 of the Civil Code, 1997. (in Georgian).

[31] Paragraph 1 of Article 12 of the Law "On Mediation", 2019. (in Georgian).

[32] Stipanowich, T., (2004). Why Businesses Need Mediation, Legal Studies Research Paper Series, Commercial Mediation in Europe, p. 10. (in English).

[33] Att. Dursun Al, (2017). The Principle of Confidentiality in Mediation and the Rols of Confidentiality In Commercial Mediation, Afro Eurasian Studies Journal, Vol. 6, Iss. 1&2, Spring & Fall, pp. 18-19. (in English).

[34] Article 3 of the Law "On Mediation", 2019. (in Georgian).

[35] Deason, E. E., (2002). Predictable Mediation Confidentiality in the U.S. Federal System, Ohio State Journal onDispute Resolution, Col. 17, No.2, p. 245. (in English).

[36] Tsertsvadze, G., (Ed.) (2013). Prospects of legal regulation of mediation in Georgia, Tbilisi, p. 32. (in Georgian).

[37] Deason, E. E., (2001). The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or CrucialPredictability? Marquette Law Review, Vol. 85, p. 81. (in English).

[38] Lawrence R. Freedman, Michael L. Prigoff, (1986). Confidentiality in Mediation: The Need for Protection, Journal On Dispute Resolution, Vol.2:1, p. 37-38. (in English).

[39] Macturk, C. H., (1995). Confidentiality in Mediation: The Best Protection has Exception, „American Journal of Trial Advocacy“, Vol. 19, p. 415. <http://heinonline.org/HOL/Page?handle=hein.journals/amjtrad19&div=25&g_sent=1&casa_token=&collection=journals> [12.02.2022]. (in English); About teutralitat see Chitashvili, N., (2016). Specificity of Some Ethical Duties of Lawyer Mediator and Necessity of Regulation, “Journal of Law”, №2, 2016, 36-37. (in Georgian).

[40] Wykoff, A., (2016). Mediation & Confidentiality, „Bond University Student Law Review“, Vol. 4, p. 5. (in English).

[41] Tsertsvadze, G., (Ed.) (2013). Prospects of legal regulation of mediation in Georgia, Tbilisi, p. 32. (in Georgian).

[42] Feinberg, K. R., (1989). Mediation - A Preferred Method of Dispute Resolution, Pepperdine Law Review, Vol. 16, Iss. 5, S 10. (in English).

[43] De Palo, G., D’URSO, L., (2016). In: “The Implementation of the Mediation Directive, Workshop”, Research Administrator Responsible: Raffaelli R., p. 12. (in English).

[44] Baturina, N.A., (2016). Foreign Experience of Legal Regulation of the Mediation Procedure, In the Collection of Materials of the I All-Russian Scientific and Practical Conference with International Participation (Saratov, December 4, 2015): “Prospects for the Formation and Development of Mediation in the Regions”, Saratov, p. 23. (in Russian).

[45]  Paragraph "A³" of the first part of Article 39, Civil Procedure Code of Georgia, 1997. (in Georgian).

[46] Section 2¹ of Article 49, Civil Procedure Code of Georgia, 1997. (in Georgian).

[47] Tsertsvadze, G., (2010), Mediation - an alternative form of dispute resolution (general review), Tb., p. 55. (in Georgian).

[48] Radford, M. F., (2001). Advantages and Diadvantages of Mediation in Probate, Trust, and Guardianship Matters, Pepp. Disp. Resol. LJ, Vol. 1, pp. 244-245. (in English).

[49] Tarman, Z. D., (2016). Mediation as an Option for International Commercial Disputes, In: Annales de la faculté de Droit d’Istanbul, Vol. 48, No. 65, p. 232. (in English).

[50] Hardy, S., Rundle, O., (2010). Mediation for Lawyers, Australia, p. 9. (in English).

[51] Tsertsvadze, G., (Ed.) (2013). Prospects of legal regulation of mediation in Georgia, Tb., pp. 209, 224. (in Georgian).

[52] Wykoff, A., (2016). Mediation & Confidentiality, „Bond University Student Law Review“, Volume 4, pp. 4-5. (in English).

[53] Lawrence R. Freedman, Michael L. Prigoff, (1986). Confidentiality in Mediation: The Need for Protection, Journal On Dispute Resolution, Vol.2:1, p. 45. (in English).

[54] Zhao, Y., Koo, A.K.C., (2011). The Development of Legal Protection for Mediation Confidentiality in Hog Kong. „Common Law World Review“, p. 264. <http://heinonline.org/HOL/Page?handle=hein.journals/comlwr40&div=17&g_sent=1&casa_token=&collection=journals>  [11.03.2022] (in English).

[55] Macturk, C. H., (1995). Confidentiality in Mediation: The Best Protection has Exception, „American Journal of Trial Advocacy“, Vol. 19, p. 412. (in English).

[56] See Brown, K. L., (1991). Confidentiality in Mediation: Status and Implications, Journal of Dispute Resolution, Iss. 2, Vol. p. 310.

[57] Callahan, R., (2012). Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality be a Function of the Court in Which the Litigation is Pending? Perpperdine Dispute Resolution Law Journal, Vol. 12: 63, p. 96. (in English).

[58] Clause 7 of Article 10 of the Law "On Mediation", 2019, explanatory card, registration No. 07-2/319/9. (in Georgian).

[59] Lawrence R. Freedman, Michael L. Prigoff, (1986). Confidentiality in Mediation: The Need for Protection, Journal On Dispute Resolution, Vol.2:1, pp. 37-38. (In English).

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