Mediation: mediator and party representation

What is mediation and when does it fit?

In mediation the parties negotiate with the help of a neutral mediator. The mediator clarifies the issues in dispute, helps disclose the information needed and suggests options for a solution, but the decision remains with the parties. Mediation is possible before a claim is filed, and also during a proceeding already under way: the court may, with the consent of the parties, refer a claim to mediation (section 79C(b)).

Mediation fits especially when the parties will keep meeting after the dispute, such as neighbours, partners, family members who inherited a property together or apartment owners in a condominium, and when an agreed solution can include elements a court does not award, such as a payment schedule, a division of use or an undertaking for the future.

Mediator or representative: two different roles

As mediator. Adv. Amos Ilan, a certified mediator, conducts mediations in civil and commercial disputes, including real estate disputes, neighbour and condominium disputes, disputes between partners and contract disputes. The mediator acts fairly, in good faith and without bias, and does not accept an appointment where there is a concern of a conflict of interest (regulation 5 of the Courts (Mediation) Regulations, 5753-1993).

As representative. The office accompanies one party in a mediation conducted by another mediator: preparing for the meetings, assessing the risks and prospects if the mediation fails, conducting the negotiation, and drafting the mediation settlement so that it is clear and enforceable. The accompaniment matters because the mediator does not advise the parties: under regulation 5(g), the mediator does not give a professional opinion on a question that arose in the mediation.

A person who serves as mediator in a dispute does not represent either of the parties in it.

How does mediation proceed? Four stages

1. Consent and appointment. The parties agree on the mediator and sign a mediation agreement with him, which sets the rules and his fee.
2. Joint meeting. Each party presents its position, and the mediator clarifies what is really in dispute.
3. Separate meetings and negotiation. The mediator may meet the parties together or separately (section 79C(c)). Information a party gave the mediator with a request to keep it secret is not passed to the other party (regulation 5(f)).
4. Mediation settlement. If the parties reach agreement, the settlement is drawn up in writing, sets out all the terms and is signed by the parties (regulation 9).

Each party may stop the mediation at any time (regulation 8(a)). There is no duty to reach agreement.

What stays confidential in mediation?

Under section 79C(d) of the Courts Law, things said in a mediation process shall not serve as evidence in civil legal proceedings. The mediator does not disclose information given to him in the mediation to anyone who is not a party to it, and does not use it for another purpose (regulation 5(d) and (e)). The confidentiality lets the parties speak openly and make offers, without fearing that what was said will be used against them if the mediation does not succeed.

What is a MAHUT meeting?

A MAHUT meeting (information, acquaintance and coordination) is a meeting with a mediator, intended to examine whether the dispute can be settled by an alternative route. Under regulation 37 of the Civil Procedure Regulations, 5779-2018, the officer in charge appoints a MAHUT mediator in a claim whose amount or the value of whose subject exceeds NIS 40,000, except a claim for compensation for bodily injury and a claim under the Road Accident Victims Compensation Law. The meeting is held free of charge, in the courts listed in the Second Schedule to the Regulations.

The parties attend the meeting, and may attend with their lawyers. A party who does not attend may be charged costs (regulation 37(j)). The meeting itself does not oblige anyone to agree to mediation: after it, the parties state whether they agree to refer the dispute to mediation.

How does a mediation settlement become binding?

A signed mediation settlement is a contract between the parties. So that it can be enforced like a judgment, the court is asked to give it the force of a judgment (section 79C(g)). This can be requested even where no claim was filed in that dispute: the court competent to hear the dispute may give the mediation settlement the force of a judgment (section 79C(h)).

The drafting of the settlement determines whether it can be enforced. A good settlement sets out who does what and by when, what happens if a payment is not made, and exactly what ends with its signature.

Mediation, arbitration or court?

• Mediation. The parties decide for themselves. The process is confidential, usually short, and can be stopped at any time.
• Arbitration. An arbitrator chosen by the parties decides the dispute, and the decision is binding. For more, see Arbitration.
• Court. A judge decides according to the law, in a public proceeding with a right of appeal.

After the mediation has stopped, the parties may agree that the mediator be appointed arbitrator in the dispute (regulation 5(h)).

What to bring to the meeting

• The contract or documents on which the dispute rests.
• The correspondence between the parties, including settlement offers already made.
• The pleadings and decisions, if a court proceeding is under way.
• The invitation to the MAHUT meeting, if received.

Timetable and cost

Timetable: mediation sometimes ends in one meeting, and sometimes several are needed. When the mediation takes place during a court proceeding, the proceedings are stayed for a period set by the court (section 79C(e)).

Cost: the mediator's fee is set in advance in the mediation agreement. The fee for representation in mediation is set in a written fee agreement.

Want to start mediation?

You may contact the office to appoint Adv. Amos Ilan as mediator, with the consent of all parties, or for accompaniment and representation in a mediation already scheduled. We will be glad to hear the details and explain the options.