The non-character of mediation also means that no decision can be imposed on the parties. For a transaction to be concluded, the parties must voluntarily agree to accept it. Statements made by the Ombudsman during mediation may bring an action against the Mediator under the Misrepresentation Act of 1967. However, there appear to be a number of difficulties in showing what explanations have been made and on which they have relied (as explained above). Given the relationship of trust between the parties and the mediator, it is possible that a party will take legal action against the Ombudsman for breach of the trust obligation. The trust obligations that a mediator owes to the parties (and which can therefore be violated) may include the duty not to be biased, to be trustworthy and scrupulously. For example, a mediator may violate these obligations if he has withheld important information from a party in violation of the instructions received. How would you enforce this agreement in court? It was written, but instead of a contract, it was supposed to be the checklist. “Keep in mind that you need to talk to me if you have a problem?” or “Remember I have to use the signal to ask you for time to talk in private?” This would probably not result in a breach of the treaty. How would we know if there is an offence? How would we measure the damage? In this case, the parties could return to mediation, submit a new agreement to respond to what was not working, or re-commit to the original agreement. Since they have to continue their relationship, it is both ways to try again. Mediation is a way for people arguing to talk about their problems and concerns and to make decisions about the dispute with the help of another person (called Mediator).
A mediator cannot decide who is right or wrong, or tell you how to resolve your dispute. In mediation, you can try to find solutions that are useful to you and to the other person in the litigation in order to resolve some or all of your concerns. By agreeing to submit a dispute to MEDIATION, the parties adopt WIPO`s mediation rules as part of their mediation agreement. These rules have the following main functions: as well as the offer, acceptance, consideration and intention to create legal relationships, the agreements concluded in the context of mediation do not differ. But in practice, it`s not always that simple. As a result of conciliation, instead of getting involved in arguments in favour of the cancellation of so-called agreements, a party may argue that no binding contract has ever been concluded between the parties. This can be done on the basis of the absence of one or more of the elements necessary for the formation of contracts. To avoid this problem, most standard mediation agreements provide that the parties will not be bound until after the agreement has been signed.
The main obstacle to legal action against a mediator for breach of contract is to be able to prove that the Ombudsman`s performance has caused harm and how to calculate that damage. This includes assessing the outcome of the mediation if the offence had not taken place. It is important to remember that there are cases where, despite the best efforts of a respected mediator, mediation will not necessarily lead to a resolution of the dispute. Mediation is a confidential procedure. Confidentiality promotes openness and openness in the process by ensuring that all authorizations, proposals or offers of settlement will have consequences beyond the mediation process. They generally cannot be used in future litigation or arbitration proceedings.