Comparison between the legal proceeding and the mediation process

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The outcome of mediation is the opposite of a judicial decision. The principle of the judicial system, especially when the assistance of a lawyer is required, has impacts and consequences on the entire relational system of an individual, his perception of things, his reflection and action:

[edit] Definition of a Conflict

The definition of a conflict enables to notice the difference between an approach that mediation should allow and a legal proceeding. Nevertheless, the various conceptions of mediation inevitably lead to various results. The approach proposed by Mediators Associates ® and the Professional Chamber of Mediation and Negotiation develops the framework of a clear definition of a conflict; that the other training centers do not have.

Indeed, the identification of the three ingredients of a conflict that may lead to a trial enables to understand the course of a judicial proceeding, in comparison with mediation, and the role of each protagonist, both in judicial matter than in mediation.

Jean-Louis Lascoux reminded the three ingredients which are:

  • Legal element - contractual
  • Technical element - practice
  • Emotional element - affective

For a conflict to be prone to a judicial proceeding, the legal element is essential. In civil matters (we are in the context of civil mediation) it is even indispensable. If there is no legal element, may it be a named or unnamed contract, may it be written or not, may it be the commitment of a responsibility or another form of relations resulting from the social contract, the case cannot succeed.

[edit] The Consequences of the Judicial System

The judicial system:

  • Deprives a person of his direct expression;
  • Dispossess a person of his interpretation of facts and understanding of his personal positioning to bring them into the system of reading and skills dictated by the legal texts;
  • Withdraws a person the his autonomy of his decision; denies his creativity in the research of a solution to resolve the dispute;
  • Dictates a person his conduct, his behavior and even his way to communicate with the other party/parties.

[edit] Comparisons

Judicial proceeding...............................|.......... Mediation process

Loss of time .........................................|.......... Gain of time

No possible mourning ..........................|.......... Mourning fast / remission

Lasting anger .......................................|.......... Peace

Power struggle ....................................|.......... Rebuild relations

Imposed judgment by a third party......|.......... Agreement validated by the parties themselves

Disappointment for at least one party...|.......... Satisfaction or reparation for both parties

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