Comparison between the mediation process and the court trial

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Mediation and court trial have some differences! Follow the text below and you will learn what are they. Have a nice minutes with our lecture about the differences between mediation and court trial!

The principle of delegation is firmly established in the court trial. This principle represents the possibility of the parties to be represented by lawyers. These lawyers accordingly defend the client’s position and accept it as their own. Also, the participation of the parties is weak. Another key point in the trial is that justice rules sovereignly, ie. a third party (the court, or in particular the judge) decides what the outcome of the process will be. In the trial, each of the parties concerned considers that is “entitled to …”, i.e. each party defends its own position by defending its own rights and seeking justice. Here we come to a point that we can call a struggle for justice. Each party is involved in this struggle, and will inevitably lead to either victory or loss. In a court trial, decisions are of the “either, or” type, ie. there is no way both sides can win and receive what they want. Also, in order for a court trial to be accomplished, the conflict must necessarily be or become real, ie. no trial can be held if the conflict is only in the imagination of one of the parties. Conflict resolution comes only at the end of the whole process, ie. it is necessary to go through a long procedure in order to reach a judgment by the court dealing with the conflict. Unfortunately, a lawsuit inevitably leads to a point where the weaknesses of one or the other party (if not both) are used as a weapon against them. Another potential negative observed in the trial is the possibility that the development of the process will be “frozen”. There is also no room for learning in the trial, ie neither side has the opportunity to learn from mistakes, to gain certain knowledge, to develop new communication skills and so on. In litigation, the only reference system is the law, ie. the decision cannot have anything to do with personal opinions, feelings and emotions. Also, the time and speed of the process are almost impossible to calculate.

Unlike the court process, in mediation the principle of personal responsibility is strongly advocated, ie. a person expresses his own points of view, feelings, experiences, desires and so on. Another difference is that justice is developed by the parties themselves, ie. the mediator does not have the right to make decisions (unlike the court and the judge in the trial). In the mediation process, the interests and needs of both parties are at the forefront, ie. solutions are sought that satisfy both parties to the maximum extent. Here the so-called “Art of Peace” is fully realized and all opportunities and conditions for cooperation are used, ie. an agreement is sought between the parties. The aim is to find solutions of type “and” that satisfy both parties. In mediation, the dynamics of the relationship and emotions can be seen and often discussed and understood. In this process, weaknesses are not used from the parties as weapons against each other in the conflict. Also, mediation allows us to discover new moments important for the parties and to discover and discuss the underlying concerns, fears, worries and so on. Here we need to mention one of the main positives of this type of process, namely the ability to learn, ie. the opportunity to acquire new knowledge, skills and competencies to be used to resolve future conflicts. In mediation, the law is not the only referent. Other systems and subsystems can be involved here, such as culture, religion, economy, various aspects of connection, the state of mind of the parties and others. In the mediation process, the time and speed at which the process takes place can be determined.

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