Opportunities recognized by mediation - INTERVIEW

This week's interviewee is Farhad Mehdiyev, a member of the Mediation Council and a mediator.Farhad Mehdiyev is also a professor of international law and a mediation trainer.We asked him some questions about the innovations, and opportunities brought by the mediation and got answers.

E-huquq.az presents interview:

- What is mediation, and what opportunities does it provide to our citizens as well as companies?

-At first sight, mediation may seem like an extension, a delay in resolving disputes.In fact, when the right approach is taken, when mediation is conducted in a professional way, the parties recognize serious opportunity and chances.The adoption of mediation in our country is not aimed just at approaching modern world standards in justice or reducing the workload of the courts. Although there are these goals in the application of mediation, the most important goal of mediation is to find the optimal solution for all parties to the dispute without instigating the dispute, causing greater harm to the parties, and prolonging it.The mediator is not the judge who makes the decision, in fact the decision is made by the parties themselves, together.However, the mediator is not an ordinary observer in this process, he manages the negotiation process, helps to understand the real interests of the parties, and strives to find new solutions for the parties.The mediator helps the parties to understand their true interests, leaving aside the emotions, ambitions, and other factors that do not serve their interests, and emerges a solution that best meets all of these interests for the parties.

-Can it be said that a mediator, like a court (judge), manages the process in a similar way?

-When it comes to out-of-court dispute resolution methods, the most court-like method is arbitration.In our country, it is currently possible to apply to arbitration only in commercial disputes, which is an element of private international law. The arbitrator also resolves disputes over substantive procedural law previously determined by the parties, or applied by the arbitral tribunal.As the mediator generally does not resolve the dispute himself, as a rule, no material rights are applied in the negotiations in the mediation process.Here, the interest of the parties in the negotiation process, their ability to negotiate, negotiation tactics have an impact. It is necessary to talk about another advantage of mediation, which, unlike the court decision, is to create an opportunity for a one-time settlement of the dispute.The parties conclude the agreement through mediation voluntarily, but they understand very well that the agreement is in their interests.In court, the decision is usually in favor of one party and against the other, and the animosity between the parties continues.Mediation is a serious opportunity for the parties, it must be taken seriously and valued.

- What is the duty of citizens and lawyers in this issue?

-Our citizens should not be afraid of mediation.Except when the initial mediation session is mandatory, even in disputes (such as breach of contract, damage (delict liability)), the mediator should try to mediate as soon as possible, at a lower cost and with less risk.However, without the necessary support of lawyers, the implementation of the mediation process would be delayed.First of all, lawyers should know that they can receive a fee by negotiating as a representative of the party in the mediation process, and not going to court does not deprive them of profit.Of course, the fee scheme that lawyers or advocates will want in mediation will be slightly different, and the main method may be to ask for a certain amount just for participation, and in case of reaching a settlement agreement, to ask for an additional reward.To do this, lawyers need to develop negotiation skills; I note that this is not a speech in court, or the ability to substantiate a claim. Foreign universities have electives that teach negotiation.The procedure for conducting negotiations should not known only by mediator.The better the lawyers or representatives of the parties are able to do this, the more likely it is that a mediation agreement will be reached through mediation.

-Commercial disputes also involve at least primary mediation. What opportunities does mediation provide for entrepreneurs and individuals?

-In order to assess the opportunities and chances recognized by mediation for companies and entrepreneurs, they need to understand these opportunities and take appropriate steps.The lawyers of these commercial entities have a serious job to do here.First of all, remember that entrepreneurs work through contracts.Those who want to take advantage of mediation should conclude their contracts in more detail, specify the obligations of the parties, the description of the work to be done, the characteristics of the goods, the rules of procedure, the mediation clause in the dispute resolution clause, and they will have more say, minimize the risks in disputes, and, in addition, build a healthy relationship with their partners.But for this, the right management system and quality standards must be strictly applied in those companies. After all this, I would like to note that the workload of judges will be reduced, and better and fairer decisions will be made in unresolved disputes arising from mediation. Mediators also have a responsibility in this issue.By strictly following the rules of his profession, acting professionally, deepening his experience, he will fulfill the mission of resolving disputes in society, resolving disputes and dissatisfaction among people.