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Dispute resolution in the form of extrajudicial mediation

Kortversjonen

Lytt til artikkelen

1. Introduction

The costs of traditional dispute resolution in the court apparatus have become high. This also applies to contract disputes, and although research shows that there is a certain degree of proportionality between costs and the size of the claims being processed. We have written about this in our article on Traditional Dispute Resolution for the Ordinary Courts, read more here.

Over time, it has emerged that an increasing number of industry players are seeking legal mediation in the hope of bringing the dispute to an end. In any case, it is hoped that parts of the case can be reconciled so as to limit the scope of the case.

Most often it is the case that the judge who prepares the case is the one who mediates the proceedings. It may therefore be a coincidence if the mediator has experience in mediation and with contract disputes. The reason for this is that Norwegian legal practice is based on a so-called coincidence principle. In the case of assigning incoming cases to judges, this must be done without an evaluation of suitability. If you are a judge, you are a judge. This is considered a strength in most types of cases, but should not be a strength when it comes to mediating complex cases such as major contract disputes.

Another disadvantage of judicial mediation is that the parties must first expend relatively large resources in the subpoena and the equivalent before judicial mediation can take place. At the same time, knowing that the fronts tend to be somewhat sharpened when a trial is initiated, it goes without saying that the preparation for a judicial mediation is not ideal.

On the other hand, we have learned that judicial mediation still works - and in part very well. Courts have also gained an increasing focus on judicial mediation as a tool for resolving cases, and now judicial mediation has become virtually mandatory. This is not without reason, and most parties should embrace the possibility of having a conflict resolved through mediation.

However, it is not only through judicial mediation that a case can be properly mediated. In recent years, a very good alternative called extrajudicial mediation has developed, and a very good education is offered for those who wish to undertake such missions. This article shall mainly deal with extrajudicial mediation using certified mediators.

2. Briefly about the dispute resolution mechanisms of standard contracts

This topic is dealt with in separate article which you can find here.

To clarify one thing right away; the standard contracts are silent about judicial mediation and extrajudicial mediation in general.

In contrast, NS 8407 and NS 8417 contain provisions on so-called project-integrated mediation. This is an institute that is mainly used in the really big projects, and not directly relevant to what is the topic of this article. You can instead read more about this in the article on the dispute resolution mechanisms of standard contracts.

More pertinent to mention is that all standard contracts contain provisions on adjudication decisions. Such decisions are, as a starting point, indicative, not legally binding and can thus be said to be temporary.

The preparation of an arbitration case is quite similar to the preparation for a trial before the ordinary courts or arbitration. This means that the parties write, respectively, “writ” and “equivalent” in which they argue their point of view. In addition, the parties provide the documentation that they believe substantiates their own case. The parties are also given the opportunity to file their own supplementary “procedural documents”. The proceedings are exclusively in writing, there are no witnesses and the parties do not explain themselves to the arbitrator.

The treatment of an arbitrator under the system of standard contracts is, to which we shall immediately return, the complete opposite of that which is the practice of extrajudicial mediation.

3. Briefly about the mediator training

Today, one can become certified as a mediator by taking a fairly intense and highly professional course under the auspices of the Mediation Academy, which is a collaboration between Juristenes Utbildningscentrum and the Norwegian Bar Association.

The course runs over four intense days and ends on the fifth day with an exam that is essentially practical. The course syllabus consists of theory in combination with many practical exercises where participants are put on a number of different trials.

The course is popular and participants are often lawyers and judges, but participants with other education and professional backgrounds who see the value in being a certified mediator.

There is an overview of certified mediators at the Norwegian Mediation Centre (www.norskmekling.com), which is run in cooperation with, among others, the Law Society. Many certified mediators are also a member of the Mediation Association (www.medieklingsforeningen.no) that has prepared ethical guidelines for certified mediators, templates, and documents that members can (and should) utilize in assignments as mediators.

4. Preparations for, and benefit of, extrajudicial mediation

An out-of-court mediation with a certified mediator normally begins with both parties contacting the person they wish to mediate in a conflict between them.

After the formality is in place, see paragraph 5 below, the preparation is usually started by the parties writing a brief statement on what the dispute deals with.

The parties should not prepare a subpoena or equivalent, and ideally the parties cooperate in writing a statement to the mediator.

In contract disputes, there are usually a number of different partial claims. The ideal is for the parties to draw up a matrix showing the individual sub-requirements, and preferably taking their positions for each individual sub-requirement. In this way, the mediator gets a good picture of the parties' positions while there are no ambiguities between the parties.

After the mediator has gained this knowledge, one is happy to agree on the framework for the mediation. It will in any case apply to practical matters such as where the mediation will take place, how long to set aside, whether there is a need for a co-mediator, etc.

A not insignificant advantage of extrajudicial mediation is that the parties do not have to prepare subpoenas and equivalents. The parties shall also not provide evidence in the form of documents or witness statements.

This has at least three advantages compared to legal mediation.

First of all, you don't have to take out a subpoena. The disadvantage of taking out a subpoena is that one cannot withdraw a writ once it is filed without simultaneously stating one's claims. You could say it so that “the table catches”.

Secondly, you do not have to incur all the costs that are most often a consequence of drawing up a subpoena and then reviewing the counterparty's liability. Similarly, it is for those who would otherwise have had to review the subpoena and then prepare their response. It is not only the costs of own lawyer that are incurred, but also costs for other types of external assistance and not least indirect costs because people within the organization have to spend valuable time.

Thirdly, conflicts tend to become somewhat acute and the relations between the parties become somewhat more acute and strained when one reads what the other party has written in the subpoena or the equivalent.

‍

5. Conducting extrajudicial mediation

Normally, mediation starts with the mediator gathering the parties in a suitable room.

The room should be designed in such a way that the parties experience meeting as equal parties. There should be good ventilation and you should also have technical aids at your disposal such as AV equipment. In addition, it is important to think about comfort so that one has access to easier dining and premises where the parties can retreat etc.

When initiating the mediation, the mediator will be willing to initiate and how this is done will probably depend on a good part of the individual mediator. Mediators are like most people with different strengths that one wants to play on, and one has made up their experiences. Partly own experiences in good and bad, and partly by having observed others in the role of mediator.

However, it is the parties who are central to the mediation and it is important that they are given an account of their case. The oral statements of the parties regarding their views on the dispute are often spent a lot of time. Whether the parties' lawyers will also hold posts will vary, but this is part of what is being clarified in advance of the start of mediation.

As pointed out in paragraph 4, contract disputes usually contain a number of partial claims. As mentioned above, it makes sense if the parties include these in a matrix where the parties' positions are also shown. After the parties have submitted their oral statements supplemented by their respective lawyers, it may be natural to review the matrix. This review can have several functions, and among them is that the parties turn the focus away from what separates them and onto something they have collaborated to work out.

Mediation is often about psychology.

After one has gone through these steps, the continuation will depend on the situation there and then.

If the parties act constructively and the dialogue is good, it indicates that the dialogue continues in the same space and with a high degree of transparency between the mediator and the parties.

If, on the other hand, the situation is the opposite with a lot of emotion and very little dialogue (if any), a continuation can be that the parties take a break separately, and then move on to separate conversations. In this case, the parties sit with their lawyers in separate rooms and then the mediator conducts separate conversations with each of them.

This stage can be very demanding - for everyone. The point then is not to tire out the party or mediator, but gradually try to get uncovered where the shoe presses. For it is often the case that something weighs more than anything else for a party. Experientially, it is also the case that parties find it easier to open up with only the mediator present in the room, than where the counterparty is also present.

The role of the mediator in such meetings will be, among other things, to obtain as good a picture of the situation as possible. If each party gains confidence in the mediator, the mediator will eventually be able to find possible solutions that may not have been contemplated by either party. In any case, a mediator will have to use what one has of abilities and interpersonal qualities and experience to guide the parties, provide input where it is and especially be a good listener.

In these talks, a mediator's main focus will not be so much on historical matters, but rather what it will take for the parties to find a solution. It is not so important for a mediator to find out who said what, when and where.

The mediator's task is neither to apportion responsibility nor blame, nor to render a judgment or a preliminary decision.

What the mediator should try is to give the parties the opportunity to find solutions themselves with which they can live.

The parties must own the solution they come up with.

Contract disputes are particularly suitable for extrajudicial mediation.

It almost never occurs that one party wins a court case “hundred-nil”. Therefore, it is also more a general rule than an exception that legal fees are awarded. And the legal fees in a construction dispute can be high.

Further, the various partial claims will rarely be of a principled nature and there will be large variations in the amount of the dispute.

The possibilities for finding good intermediate solutions should therefore be great. And if you do not resolve absolutely all points of contention, you will be happy to find solutions to many partial claims.

Solutions that will, in any case, reduce the parties' procedural costs if they still have to have the remaining points of contention dealt with in the judicial apparatus.

‍

6 Formal rules

Chapter 7 of the Disputes Act contains its own rules that the parties may decide to follow in extrajudicial mediation.

Often, the extrajudicial mediator will also require, and in any case prefer, that the mediation be conducted in accordance with these rules.

Of particular interest is mentioned Section 7-2 (2) of the Disputes Act, which states that the mediator must be impartial, independent of the parties and qualified for the assignment.

It is also a clear prerequisite for the mediation that all participants have a duty of confidentiality, cf. Section 7-3 (6) of the Dispute Act. This also includes the mediator and not least everything that one learns in separate meetings. As a starting point, the parties should know that what is communicated to the mediator in separate meetings is confidential unless the mediator is allowed to pass the information on to a counterparty as part of the negotiations leading to a possible settlement. This is to ensure that the individual party can have confidence in the mediator.

If the parties reach an amicable solution to all or part of the dispute, this agreement is enshrined in an agreement, but this is not a judicial settlement. A court settlement can only be reached if the court mediates.

Tilbake

Dispute resolution in the form of extrajudicial mediation

Kortversjonen

Lytt til artikkelen

1. Introduction

The costs of traditional dispute resolution in the court apparatus have become high. This also applies to contract disputes, and although research shows that there is a certain degree of proportionality between costs and the size of the claims being processed. We have written about this in our article on Traditional Dispute Resolution for the Ordinary Courts, read more here.

Over time, it has emerged that an increasing number of industry players are seeking legal mediation in the hope of bringing the dispute to an end. In any case, it is hoped that parts of the case can be reconciled so as to limit the scope of the case.

Most often it is the case that the judge who prepares the case is the one who mediates the proceedings. It may therefore be a coincidence if the mediator has experience in mediation and with contract disputes. The reason for this is that Norwegian legal practice is based on a so-called coincidence principle. In the case of assigning incoming cases to judges, this must be done without an evaluation of suitability. If you are a judge, you are a judge. This is considered a strength in most types of cases, but should not be a strength when it comes to mediating complex cases such as major contract disputes.

Another disadvantage of judicial mediation is that the parties must first expend relatively large resources in the subpoena and the equivalent before judicial mediation can take place. At the same time, knowing that the fronts tend to be somewhat sharpened when a trial is initiated, it goes without saying that the preparation for a judicial mediation is not ideal.

On the other hand, we have learned that judicial mediation still works - and in part very well. Courts have also gained an increasing focus on judicial mediation as a tool for resolving cases, and now judicial mediation has become virtually mandatory. This is not without reason, and most parties should embrace the possibility of having a conflict resolved through mediation.

However, it is not only through judicial mediation that a case can be properly mediated. In recent years, a very good alternative called extrajudicial mediation has developed, and a very good education is offered for those who wish to undertake such missions. This article shall mainly deal with extrajudicial mediation using certified mediators.

2. Briefly about the dispute resolution mechanisms of standard contracts

This topic is dealt with in separate article which you can find here.

To clarify one thing right away; the standard contracts are silent about judicial mediation and extrajudicial mediation in general.

In contrast, NS 8407 and NS 8417 contain provisions on so-called project-integrated mediation. This is an institute that is mainly used in the really big projects, and not directly relevant to what is the topic of this article. You can instead read more about this in the article on the dispute resolution mechanisms of standard contracts.

More pertinent to mention is that all standard contracts contain provisions on adjudication decisions. Such decisions are, as a starting point, indicative, not legally binding and can thus be said to be temporary.

The preparation of an arbitration case is quite similar to the preparation for a trial before the ordinary courts or arbitration. This means that the parties write, respectively, “writ” and “equivalent” in which they argue their point of view. In addition, the parties provide the documentation that they believe substantiates their own case. The parties are also given the opportunity to file their own supplementary “procedural documents”. The proceedings are exclusively in writing, there are no witnesses and the parties do not explain themselves to the arbitrator.

The treatment of an arbitrator under the system of standard contracts is, to which we shall immediately return, the complete opposite of that which is the practice of extrajudicial mediation.

3. Briefly about the mediator training

Today, one can become certified as a mediator by taking a fairly intense and highly professional course under the auspices of the Mediation Academy, which is a collaboration between Juristenes Utbildningscentrum and the Norwegian Bar Association.

The course runs over four intense days and ends on the fifth day with an exam that is essentially practical. The course syllabus consists of theory in combination with many practical exercises where participants are put on a number of different trials.

The course is popular and participants are often lawyers and judges, but participants with other education and professional backgrounds who see the value in being a certified mediator.

There is an overview of certified mediators at the Norwegian Mediation Centre (www.norskmekling.com), which is run in cooperation with, among others, the Law Society. Many certified mediators are also a member of the Mediation Association (www.medieklingsforeningen.no) that has prepared ethical guidelines for certified mediators, templates, and documents that members can (and should) utilize in assignments as mediators.

4. Preparations for, and benefit of, extrajudicial mediation

An out-of-court mediation with a certified mediator normally begins with both parties contacting the person they wish to mediate in a conflict between them.

After the formality is in place, see paragraph 5 below, the preparation is usually started by the parties writing a brief statement on what the dispute deals with.

The parties should not prepare a subpoena or equivalent, and ideally the parties cooperate in writing a statement to the mediator.

In contract disputes, there are usually a number of different partial claims. The ideal is for the parties to draw up a matrix showing the individual sub-requirements, and preferably taking their positions for each individual sub-requirement. In this way, the mediator gets a good picture of the parties' positions while there are no ambiguities between the parties.

After the mediator has gained this knowledge, one is happy to agree on the framework for the mediation. It will in any case apply to practical matters such as where the mediation will take place, how long to set aside, whether there is a need for a co-mediator, etc.

A not insignificant advantage of extrajudicial mediation is that the parties do not have to prepare subpoenas and equivalents. The parties shall also not provide evidence in the form of documents or witness statements.

This has at least three advantages compared to legal mediation.

First of all, you don't have to take out a subpoena. The disadvantage of taking out a subpoena is that one cannot withdraw a writ once it is filed without simultaneously stating one's claims. You could say it so that “the table catches”.

Secondly, you do not have to incur all the costs that are most often a consequence of drawing up a subpoena and then reviewing the counterparty's liability. Similarly, it is for those who would otherwise have had to review the subpoena and then prepare their response. It is not only the costs of own lawyer that are incurred, but also costs for other types of external assistance and not least indirect costs because people within the organization have to spend valuable time.

Thirdly, conflicts tend to become somewhat acute and the relations between the parties become somewhat more acute and strained when one reads what the other party has written in the subpoena or the equivalent.

‍

5. Conducting extrajudicial mediation

Normally, mediation starts with the mediator gathering the parties in a suitable room.

The room should be designed in such a way that the parties experience meeting as equal parties. There should be good ventilation and you should also have technical aids at your disposal such as AV equipment. In addition, it is important to think about comfort so that one has access to easier dining and premises where the parties can retreat etc.

When initiating the mediation, the mediator will be willing to initiate and how this is done will probably depend on a good part of the individual mediator. Mediators are like most people with different strengths that one wants to play on, and one has made up their experiences. Partly own experiences in good and bad, and partly by having observed others in the role of mediator.

However, it is the parties who are central to the mediation and it is important that they are given an account of their case. The oral statements of the parties regarding their views on the dispute are often spent a lot of time. Whether the parties' lawyers will also hold posts will vary, but this is part of what is being clarified in advance of the start of mediation.

As pointed out in paragraph 4, contract disputes usually contain a number of partial claims. As mentioned above, it makes sense if the parties include these in a matrix where the parties' positions are also shown. After the parties have submitted their oral statements supplemented by their respective lawyers, it may be natural to review the matrix. This review can have several functions, and among them is that the parties turn the focus away from what separates them and onto something they have collaborated to work out.

Mediation is often about psychology.

After one has gone through these steps, the continuation will depend on the situation there and then.

If the parties act constructively and the dialogue is good, it indicates that the dialogue continues in the same space and with a high degree of transparency between the mediator and the parties.

If, on the other hand, the situation is the opposite with a lot of emotion and very little dialogue (if any), a continuation can be that the parties take a break separately, and then move on to separate conversations. In this case, the parties sit with their lawyers in separate rooms and then the mediator conducts separate conversations with each of them.

This stage can be very demanding - for everyone. The point then is not to tire out the party or mediator, but gradually try to get uncovered where the shoe presses. For it is often the case that something weighs more than anything else for a party. Experientially, it is also the case that parties find it easier to open up with only the mediator present in the room, than where the counterparty is also present.

The role of the mediator in such meetings will be, among other things, to obtain as good a picture of the situation as possible. If each party gains confidence in the mediator, the mediator will eventually be able to find possible solutions that may not have been contemplated by either party. In any case, a mediator will have to use what one has of abilities and interpersonal qualities and experience to guide the parties, provide input where it is and especially be a good listener.

In these talks, a mediator's main focus will not be so much on historical matters, but rather what it will take for the parties to find a solution. It is not so important for a mediator to find out who said what, when and where.

The mediator's task is neither to apportion responsibility nor blame, nor to render a judgment or a preliminary decision.

What the mediator should try is to give the parties the opportunity to find solutions themselves with which they can live.

The parties must own the solution they come up with.

Contract disputes are particularly suitable for extrajudicial mediation.

It almost never occurs that one party wins a court case “hundred-nil”. Therefore, it is also more a general rule than an exception that legal fees are awarded. And the legal fees in a construction dispute can be high.

Further, the various partial claims will rarely be of a principled nature and there will be large variations in the amount of the dispute.

The possibilities for finding good intermediate solutions should therefore be great. And if you do not resolve absolutely all points of contention, you will be happy to find solutions to many partial claims.

Solutions that will, in any case, reduce the parties' procedural costs if they still have to have the remaining points of contention dealt with in the judicial apparatus.

‍

6 Formal rules

Chapter 7 of the Disputes Act contains its own rules that the parties may decide to follow in extrajudicial mediation.

Often, the extrajudicial mediator will also require, and in any case prefer, that the mediation be conducted in accordance with these rules.

Of particular interest is mentioned Section 7-2 (2) of the Disputes Act, which states that the mediator must be impartial, independent of the parties and qualified for the assignment.

It is also a clear prerequisite for the mediation that all participants have a duty of confidentiality, cf. Section 7-3 (6) of the Dispute Act. This also includes the mediator and not least everything that one learns in separate meetings. As a starting point, the parties should know that what is communicated to the mediator in separate meetings is confidential unless the mediator is allowed to pass the information on to a counterparty as part of the negotiations leading to a possible settlement. This is to ensure that the individual party can have confidence in the mediator.

If the parties reach an amicable solution to all or part of the dispute, this agreement is enshrined in an agreement, but this is not a judicial settlement. A court settlement can only be reached if the court mediates.

Tilbake

Dispute resolution in the form of extrajudicial mediation

Kortversjonen

Lytt til artikkelen

1. Introduction

The costs of traditional dispute resolution in the court apparatus have become high. This also applies to contract disputes, and although research shows that there is a certain degree of proportionality between costs and the size of the claims being processed. We have written about this in our article on Traditional Dispute Resolution for the Ordinary Courts, read more here.

Over time, it has emerged that an increasing number of industry players are seeking legal mediation in the hope of bringing the dispute to an end. In any case, it is hoped that parts of the case can be reconciled so as to limit the scope of the case.

Most often it is the case that the judge who prepares the case is the one who mediates the proceedings. It may therefore be a coincidence if the mediator has experience in mediation and with contract disputes. The reason for this is that Norwegian legal practice is based on a so-called coincidence principle. In the case of assigning incoming cases to judges, this must be done without an evaluation of suitability. If you are a judge, you are a judge. This is considered a strength in most types of cases, but should not be a strength when it comes to mediating complex cases such as major contract disputes.

Another disadvantage of judicial mediation is that the parties must first expend relatively large resources in the subpoena and the equivalent before judicial mediation can take place. At the same time, knowing that the fronts tend to be somewhat sharpened when a trial is initiated, it goes without saying that the preparation for a judicial mediation is not ideal.

On the other hand, we have learned that judicial mediation still works - and in part very well. Courts have also gained an increasing focus on judicial mediation as a tool for resolving cases, and now judicial mediation has become virtually mandatory. This is not without reason, and most parties should embrace the possibility of having a conflict resolved through mediation.

However, it is not only through judicial mediation that a case can be properly mediated. In recent years, a very good alternative called extrajudicial mediation has developed, and a very good education is offered for those who wish to undertake such missions. This article shall mainly deal with extrajudicial mediation using certified mediators.

2. Briefly about the dispute resolution mechanisms of standard contracts

This topic is dealt with in separate article which you can find here.

To clarify one thing right away; the standard contracts are silent about judicial mediation and extrajudicial mediation in general.

In contrast, NS 8407 and NS 8417 contain provisions on so-called project-integrated mediation. This is an institute that is mainly used in the really big projects, and not directly relevant to what is the topic of this article. You can instead read more about this in the article on the dispute resolution mechanisms of standard contracts.

More pertinent to mention is that all standard contracts contain provisions on adjudication decisions. Such decisions are, as a starting point, indicative, not legally binding and can thus be said to be temporary.

The preparation of an arbitration case is quite similar to the preparation for a trial before the ordinary courts or arbitration. This means that the parties write, respectively, “writ” and “equivalent” in which they argue their point of view. In addition, the parties provide the documentation that they believe substantiates their own case. The parties are also given the opportunity to file their own supplementary “procedural documents”. The proceedings are exclusively in writing, there are no witnesses and the parties do not explain themselves to the arbitrator.

The treatment of an arbitrator under the system of standard contracts is, to which we shall immediately return, the complete opposite of that which is the practice of extrajudicial mediation.

3. Briefly about the mediator training

Today, one can become certified as a mediator by taking a fairly intense and highly professional course under the auspices of the Mediation Academy, which is a collaboration between Juristenes Utbildningscentrum and the Norwegian Bar Association.

The course runs over four intense days and ends on the fifth day with an exam that is essentially practical. The course syllabus consists of theory in combination with many practical exercises where participants are put on a number of different trials.

The course is popular and participants are often lawyers and judges, but participants with other education and professional backgrounds who see the value in being a certified mediator.

There is an overview of certified mediators at the Norwegian Mediation Centre (www.norskmekling.com), which is run in cooperation with, among others, the Law Society. Many certified mediators are also a member of the Mediation Association (www.medieklingsforeningen.no) that has prepared ethical guidelines for certified mediators, templates, and documents that members can (and should) utilize in assignments as mediators.

4. Preparations for, and benefit of, extrajudicial mediation

An out-of-court mediation with a certified mediator normally begins with both parties contacting the person they wish to mediate in a conflict between them.

After the formality is in place, see paragraph 5 below, the preparation is usually started by the parties writing a brief statement on what the dispute deals with.

The parties should not prepare a subpoena or equivalent, and ideally the parties cooperate in writing a statement to the mediator.

In contract disputes, there are usually a number of different partial claims. The ideal is for the parties to draw up a matrix showing the individual sub-requirements, and preferably taking their positions for each individual sub-requirement. In this way, the mediator gets a good picture of the parties' positions while there are no ambiguities between the parties.

After the mediator has gained this knowledge, one is happy to agree on the framework for the mediation. It will in any case apply to practical matters such as where the mediation will take place, how long to set aside, whether there is a need for a co-mediator, etc.

A not insignificant advantage of extrajudicial mediation is that the parties do not have to prepare subpoenas and equivalents. The parties shall also not provide evidence in the form of documents or witness statements.

This has at least three advantages compared to legal mediation.

First of all, you don't have to take out a subpoena. The disadvantage of taking out a subpoena is that one cannot withdraw a writ once it is filed without simultaneously stating one's claims. You could say it so that “the table catches”.

Secondly, you do not have to incur all the costs that are most often a consequence of drawing up a subpoena and then reviewing the counterparty's liability. Similarly, it is for those who would otherwise have had to review the subpoena and then prepare their response. It is not only the costs of own lawyer that are incurred, but also costs for other types of external assistance and not least indirect costs because people within the organization have to spend valuable time.

Thirdly, conflicts tend to become somewhat acute and the relations between the parties become somewhat more acute and strained when one reads what the other party has written in the subpoena or the equivalent.

‍

5. Conducting extrajudicial mediation

Normally, mediation starts with the mediator gathering the parties in a suitable room.

The room should be designed in such a way that the parties experience meeting as equal parties. There should be good ventilation and you should also have technical aids at your disposal such as AV equipment. In addition, it is important to think about comfort so that one has access to easier dining and premises where the parties can retreat etc.

When initiating the mediation, the mediator will be willing to initiate and how this is done will probably depend on a good part of the individual mediator. Mediators are like most people with different strengths that one wants to play on, and one has made up their experiences. Partly own experiences in good and bad, and partly by having observed others in the role of mediator.

However, it is the parties who are central to the mediation and it is important that they are given an account of their case. The oral statements of the parties regarding their views on the dispute are often spent a lot of time. Whether the parties' lawyers will also hold posts will vary, but this is part of what is being clarified in advance of the start of mediation.

As pointed out in paragraph 4, contract disputes usually contain a number of partial claims. As mentioned above, it makes sense if the parties include these in a matrix where the parties' positions are also shown. After the parties have submitted their oral statements supplemented by their respective lawyers, it may be natural to review the matrix. This review can have several functions, and among them is that the parties turn the focus away from what separates them and onto something they have collaborated to work out.

Mediation is often about psychology.

After one has gone through these steps, the continuation will depend on the situation there and then.

If the parties act constructively and the dialogue is good, it indicates that the dialogue continues in the same space and with a high degree of transparency between the mediator and the parties.

If, on the other hand, the situation is the opposite with a lot of emotion and very little dialogue (if any), a continuation can be that the parties take a break separately, and then move on to separate conversations. In this case, the parties sit with their lawyers in separate rooms and then the mediator conducts separate conversations with each of them.

This stage can be very demanding - for everyone. The point then is not to tire out the party or mediator, but gradually try to get uncovered where the shoe presses. For it is often the case that something weighs more than anything else for a party. Experientially, it is also the case that parties find it easier to open up with only the mediator present in the room, than where the counterparty is also present.

The role of the mediator in such meetings will be, among other things, to obtain as good a picture of the situation as possible. If each party gains confidence in the mediator, the mediator will eventually be able to find possible solutions that may not have been contemplated by either party. In any case, a mediator will have to use what one has of abilities and interpersonal qualities and experience to guide the parties, provide input where it is and especially be a good listener.

In these talks, a mediator's main focus will not be so much on historical matters, but rather what it will take for the parties to find a solution. It is not so important for a mediator to find out who said what, when and where.

The mediator's task is neither to apportion responsibility nor blame, nor to render a judgment or a preliminary decision.

What the mediator should try is to give the parties the opportunity to find solutions themselves with which they can live.

The parties must own the solution they come up with.

Contract disputes are particularly suitable for extrajudicial mediation.

It almost never occurs that one party wins a court case “hundred-nil”. Therefore, it is also more a general rule than an exception that legal fees are awarded. And the legal fees in a construction dispute can be high.

Further, the various partial claims will rarely be of a principled nature and there will be large variations in the amount of the dispute.

The possibilities for finding good intermediate solutions should therefore be great. And if you do not resolve absolutely all points of contention, you will be happy to find solutions to many partial claims.

Solutions that will, in any case, reduce the parties' procedural costs if they still have to have the remaining points of contention dealt with in the judicial apparatus.

‍

6 Formal rules

Chapter 7 of the Disputes Act contains its own rules that the parties may decide to follow in extrajudicial mediation.

Often, the extrajudicial mediator will also require, and in any case prefer, that the mediation be conducted in accordance with these rules.

Of particular interest is mentioned Section 7-2 (2) of the Disputes Act, which states that the mediator must be impartial, independent of the parties and qualified for the assignment.

It is also a clear prerequisite for the mediation that all participants have a duty of confidentiality, cf. Section 7-3 (6) of the Dispute Act. This also includes the mediator and not least everything that one learns in separate meetings. As a starting point, the parties should know that what is communicated to the mediator in separate meetings is confidential unless the mediator is allowed to pass the information on to a counterparty as part of the negotiations leading to a possible settlement. This is to ensure that the individual party can have confidence in the mediator.

If the parties reach an amicable solution to all or part of the dispute, this agreement is enshrined in an agreement, but this is not a judicial settlement. A court settlement can only be reached if the court mediates.

Tilbake

Dispute resolution in the form of extrajudicial mediation

Kortversjonen

Lytt til artikkelen

1. Introduction

The costs of traditional dispute resolution in the court apparatus have become high. This also applies to contract disputes, and although research shows that there is a certain degree of proportionality between costs and the size of the claims being processed. We have written about this in our article on Traditional Dispute Resolution for the Ordinary Courts, read more here.

Over time, it has emerged that an increasing number of industry players are seeking legal mediation in the hope of bringing the dispute to an end. In any case, it is hoped that parts of the case can be reconciled so as to limit the scope of the case.

Most often it is the case that the judge who prepares the case is the one who mediates the proceedings. It may therefore be a coincidence if the mediator has experience in mediation and with contract disputes. The reason for this is that Norwegian legal practice is based on a so-called coincidence principle. In the case of assigning incoming cases to judges, this must be done without an evaluation of suitability. If you are a judge, you are a judge. This is considered a strength in most types of cases, but should not be a strength when it comes to mediating complex cases such as major contract disputes.

Another disadvantage of judicial mediation is that the parties must first expend relatively large resources in the subpoena and the equivalent before judicial mediation can take place. At the same time, knowing that the fronts tend to be somewhat sharpened when a trial is initiated, it goes without saying that the preparation for a judicial mediation is not ideal.

On the other hand, we have learned that judicial mediation still works - and in part very well. Courts have also gained an increasing focus on judicial mediation as a tool for resolving cases, and now judicial mediation has become virtually mandatory. This is not without reason, and most parties should embrace the possibility of having a conflict resolved through mediation.

However, it is not only through judicial mediation that a case can be properly mediated. In recent years, a very good alternative called extrajudicial mediation has developed, and a very good education is offered for those who wish to undertake such missions. This article shall mainly deal with extrajudicial mediation using certified mediators.

2. Briefly about the dispute resolution mechanisms of standard contracts

This topic is dealt with in separate article which you can find here.

To clarify one thing right away; the standard contracts are silent about judicial mediation and extrajudicial mediation in general.

In contrast, NS 8407 and NS 8417 contain provisions on so-called project-integrated mediation. This is an institute that is mainly used in the really big projects, and not directly relevant to what is the topic of this article. You can instead read more about this in the article on the dispute resolution mechanisms of standard contracts.

More pertinent to mention is that all standard contracts contain provisions on adjudication decisions. Such decisions are, as a starting point, indicative, not legally binding and can thus be said to be temporary.

The preparation of an arbitration case is quite similar to the preparation for a trial before the ordinary courts or arbitration. This means that the parties write, respectively, “writ” and “equivalent” in which they argue their point of view. In addition, the parties provide the documentation that they believe substantiates their own case. The parties are also given the opportunity to file their own supplementary “procedural documents”. The proceedings are exclusively in writing, there are no witnesses and the parties do not explain themselves to the arbitrator.

The treatment of an arbitrator under the system of standard contracts is, to which we shall immediately return, the complete opposite of that which is the practice of extrajudicial mediation.

3. Briefly about the mediator training

Today, one can become certified as a mediator by taking a fairly intense and highly professional course under the auspices of the Mediation Academy, which is a collaboration between Juristenes Utbildningscentrum and the Norwegian Bar Association.

The course runs over four intense days and ends on the fifth day with an exam that is essentially practical. The course syllabus consists of theory in combination with many practical exercises where participants are put on a number of different trials.

The course is popular and participants are often lawyers and judges, but participants with other education and professional backgrounds who see the value in being a certified mediator.

There is an overview of certified mediators at the Norwegian Mediation Centre (www.norskmekling.com), which is run in cooperation with, among others, the Law Society. Many certified mediators are also a member of the Mediation Association (www.medieklingsforeningen.no) that has prepared ethical guidelines for certified mediators, templates, and documents that members can (and should) utilize in assignments as mediators.

4. Preparations for, and benefit of, extrajudicial mediation

An out-of-court mediation with a certified mediator normally begins with both parties contacting the person they wish to mediate in a conflict between them.

After the formality is in place, see paragraph 5 below, the preparation is usually started by the parties writing a brief statement on what the dispute deals with.

The parties should not prepare a subpoena or equivalent, and ideally the parties cooperate in writing a statement to the mediator.

In contract disputes, there are usually a number of different partial claims. The ideal is for the parties to draw up a matrix showing the individual sub-requirements, and preferably taking their positions for each individual sub-requirement. In this way, the mediator gets a good picture of the parties' positions while there are no ambiguities between the parties.

After the mediator has gained this knowledge, one is happy to agree on the framework for the mediation. It will in any case apply to practical matters such as where the mediation will take place, how long to set aside, whether there is a need for a co-mediator, etc.

A not insignificant advantage of extrajudicial mediation is that the parties do not have to prepare subpoenas and equivalents. The parties shall also not provide evidence in the form of documents or witness statements.

This has at least three advantages compared to legal mediation.

First of all, you don't have to take out a subpoena. The disadvantage of taking out a subpoena is that one cannot withdraw a writ once it is filed without simultaneously stating one's claims. You could say it so that “the table catches”.

Secondly, you do not have to incur all the costs that are most often a consequence of drawing up a subpoena and then reviewing the counterparty's liability. Similarly, it is for those who would otherwise have had to review the subpoena and then prepare their response. It is not only the costs of own lawyer that are incurred, but also costs for other types of external assistance and not least indirect costs because people within the organization have to spend valuable time.

Thirdly, conflicts tend to become somewhat acute and the relations between the parties become somewhat more acute and strained when one reads what the other party has written in the subpoena or the equivalent.

‍

5. Conducting extrajudicial mediation

Normally, mediation starts with the mediator gathering the parties in a suitable room.

The room should be designed in such a way that the parties experience meeting as equal parties. There should be good ventilation and you should also have technical aids at your disposal such as AV equipment. In addition, it is important to think about comfort so that one has access to easier dining and premises where the parties can retreat etc.

When initiating the mediation, the mediator will be willing to initiate and how this is done will probably depend on a good part of the individual mediator. Mediators are like most people with different strengths that one wants to play on, and one has made up their experiences. Partly own experiences in good and bad, and partly by having observed others in the role of mediator.

However, it is the parties who are central to the mediation and it is important that they are given an account of their case. The oral statements of the parties regarding their views on the dispute are often spent a lot of time. Whether the parties' lawyers will also hold posts will vary, but this is part of what is being clarified in advance of the start of mediation.

As pointed out in paragraph 4, contract disputes usually contain a number of partial claims. As mentioned above, it makes sense if the parties include these in a matrix where the parties' positions are also shown. After the parties have submitted their oral statements supplemented by their respective lawyers, it may be natural to review the matrix. This review can have several functions, and among them is that the parties turn the focus away from what separates them and onto something they have collaborated to work out.

Mediation is often about psychology.

After one has gone through these steps, the continuation will depend on the situation there and then.

If the parties act constructively and the dialogue is good, it indicates that the dialogue continues in the same space and with a high degree of transparency between the mediator and the parties.

If, on the other hand, the situation is the opposite with a lot of emotion and very little dialogue (if any), a continuation can be that the parties take a break separately, and then move on to separate conversations. In this case, the parties sit with their lawyers in separate rooms and then the mediator conducts separate conversations with each of them.

This stage can be very demanding - for everyone. The point then is not to tire out the party or mediator, but gradually try to get uncovered where the shoe presses. For it is often the case that something weighs more than anything else for a party. Experientially, it is also the case that parties find it easier to open up with only the mediator present in the room, than where the counterparty is also present.

The role of the mediator in such meetings will be, among other things, to obtain as good a picture of the situation as possible. If each party gains confidence in the mediator, the mediator will eventually be able to find possible solutions that may not have been contemplated by either party. In any case, a mediator will have to use what one has of abilities and interpersonal qualities and experience to guide the parties, provide input where it is and especially be a good listener.

In these talks, a mediator's main focus will not be so much on historical matters, but rather what it will take for the parties to find a solution. It is not so important for a mediator to find out who said what, when and where.

The mediator's task is neither to apportion responsibility nor blame, nor to render a judgment or a preliminary decision.

What the mediator should try is to give the parties the opportunity to find solutions themselves with which they can live.

The parties must own the solution they come up with.

Contract disputes are particularly suitable for extrajudicial mediation.

It almost never occurs that one party wins a court case “hundred-nil”. Therefore, it is also more a general rule than an exception that legal fees are awarded. And the legal fees in a construction dispute can be high.

Further, the various partial claims will rarely be of a principled nature and there will be large variations in the amount of the dispute.

The possibilities for finding good intermediate solutions should therefore be great. And if you do not resolve absolutely all points of contention, you will be happy to find solutions to many partial claims.

Solutions that will, in any case, reduce the parties' procedural costs if they still have to have the remaining points of contention dealt with in the judicial apparatus.

‍

6 Formal rules

Chapter 7 of the Disputes Act contains its own rules that the parties may decide to follow in extrajudicial mediation.

Often, the extrajudicial mediator will also require, and in any case prefer, that the mediation be conducted in accordance with these rules.

Of particular interest is mentioned Section 7-2 (2) of the Disputes Act, which states that the mediator must be impartial, independent of the parties and qualified for the assignment.

It is also a clear prerequisite for the mediation that all participants have a duty of confidentiality, cf. Section 7-3 (6) of the Dispute Act. This also includes the mediator and not least everything that one learns in separate meetings. As a starting point, the parties should know that what is communicated to the mediator in separate meetings is confidential unless the mediator is allowed to pass the information on to a counterparty as part of the negotiations leading to a possible settlement. This is to ensure that the individual party can have confidence in the mediator.

If the parties reach an amicable solution to all or part of the dispute, this agreement is enshrined in an agreement, but this is not a judicial settlement. A court settlement can only be reached if the court mediates.

Dispute resolution in the form of extrajudicial mediation

Kortversjonen

Lytt til artikkelen

1. Introduction

The costs of traditional dispute resolution in the court apparatus have become high. This also applies to contract disputes, and although research shows that there is a certain degree of proportionality between costs and the size of the claims being processed. We have written about this in our article on Traditional Dispute Resolution for the Ordinary Courts, read more here.

Over time, it has emerged that an increasing number of industry players are seeking legal mediation in the hope of bringing the dispute to an end. In any case, it is hoped that parts of the case can be reconciled so as to limit the scope of the case.

Most often it is the case that the judge who prepares the case is the one who mediates the proceedings. It may therefore be a coincidence if the mediator has experience in mediation and with contract disputes. The reason for this is that Norwegian legal practice is based on a so-called coincidence principle. In the case of assigning incoming cases to judges, this must be done without an evaluation of suitability. If you are a judge, you are a judge. This is considered a strength in most types of cases, but should not be a strength when it comes to mediating complex cases such as major contract disputes.

Another disadvantage of judicial mediation is that the parties must first expend relatively large resources in the subpoena and the equivalent before judicial mediation can take place. At the same time, knowing that the fronts tend to be somewhat sharpened when a trial is initiated, it goes without saying that the preparation for a judicial mediation is not ideal.

On the other hand, we have learned that judicial mediation still works - and in part very well. Courts have also gained an increasing focus on judicial mediation as a tool for resolving cases, and now judicial mediation has become virtually mandatory. This is not without reason, and most parties should embrace the possibility of having a conflict resolved through mediation.

However, it is not only through judicial mediation that a case can be properly mediated. In recent years, a very good alternative called extrajudicial mediation has developed, and a very good education is offered for those who wish to undertake such missions. This article shall mainly deal with extrajudicial mediation using certified mediators.

2. Briefly about the dispute resolution mechanisms of standard contracts

This topic is dealt with in separate article which you can find here.

To clarify one thing right away; the standard contracts are silent about judicial mediation and extrajudicial mediation in general.

In contrast, NS 8407 and NS 8417 contain provisions on so-called project-integrated mediation. This is an institute that is mainly used in the really big projects, and not directly relevant to what is the topic of this article. You can instead read more about this in the article on the dispute resolution mechanisms of standard contracts.

More pertinent to mention is that all standard contracts contain provisions on adjudication decisions. Such decisions are, as a starting point, indicative, not legally binding and can thus be said to be temporary.

The preparation of an arbitration case is quite similar to the preparation for a trial before the ordinary courts or arbitration. This means that the parties write, respectively, “writ” and “equivalent” in which they argue their point of view. In addition, the parties provide the documentation that they believe substantiates their own case. The parties are also given the opportunity to file their own supplementary “procedural documents”. The proceedings are exclusively in writing, there are no witnesses and the parties do not explain themselves to the arbitrator.

The treatment of an arbitrator under the system of standard contracts is, to which we shall immediately return, the complete opposite of that which is the practice of extrajudicial mediation.

3. Briefly about the mediator training

Today, one can become certified as a mediator by taking a fairly intense and highly professional course under the auspices of the Mediation Academy, which is a collaboration between Juristenes Utbildningscentrum and the Norwegian Bar Association.

The course runs over four intense days and ends on the fifth day with an exam that is essentially practical. The course syllabus consists of theory in combination with many practical exercises where participants are put on a number of different trials.

The course is popular and participants are often lawyers and judges, but participants with other education and professional backgrounds who see the value in being a certified mediator.

There is an overview of certified mediators at the Norwegian Mediation Centre (www.norskmekling.com), which is run in cooperation with, among others, the Law Society. Many certified mediators are also a member of the Mediation Association (www.medieklingsforeningen.no) that has prepared ethical guidelines for certified mediators, templates, and documents that members can (and should) utilize in assignments as mediators.

4. Preparations for, and benefit of, extrajudicial mediation

An out-of-court mediation with a certified mediator normally begins with both parties contacting the person they wish to mediate in a conflict between them.

After the formality is in place, see paragraph 5 below, the preparation is usually started by the parties writing a brief statement on what the dispute deals with.

The parties should not prepare a subpoena or equivalent, and ideally the parties cooperate in writing a statement to the mediator.

In contract disputes, there are usually a number of different partial claims. The ideal is for the parties to draw up a matrix showing the individual sub-requirements, and preferably taking their positions for each individual sub-requirement. In this way, the mediator gets a good picture of the parties' positions while there are no ambiguities between the parties.

After the mediator has gained this knowledge, one is happy to agree on the framework for the mediation. It will in any case apply to practical matters such as where the mediation will take place, how long to set aside, whether there is a need for a co-mediator, etc.

A not insignificant advantage of extrajudicial mediation is that the parties do not have to prepare subpoenas and equivalents. The parties shall also not provide evidence in the form of documents or witness statements.

This has at least three advantages compared to legal mediation.

First of all, you don't have to take out a subpoena. The disadvantage of taking out a subpoena is that one cannot withdraw a writ once it is filed without simultaneously stating one's claims. You could say it so that “the table catches”.

Secondly, you do not have to incur all the costs that are most often a consequence of drawing up a subpoena and then reviewing the counterparty's liability. Similarly, it is for those who would otherwise have had to review the subpoena and then prepare their response. It is not only the costs of own lawyer that are incurred, but also costs for other types of external assistance and not least indirect costs because people within the organization have to spend valuable time.

Thirdly, conflicts tend to become somewhat acute and the relations between the parties become somewhat more acute and strained when one reads what the other party has written in the subpoena or the equivalent.

‍

5. Conducting extrajudicial mediation

Normally, mediation starts with the mediator gathering the parties in a suitable room.

The room should be designed in such a way that the parties experience meeting as equal parties. There should be good ventilation and you should also have technical aids at your disposal such as AV equipment. In addition, it is important to think about comfort so that one has access to easier dining and premises where the parties can retreat etc.

When initiating the mediation, the mediator will be willing to initiate and how this is done will probably depend on a good part of the individual mediator. Mediators are like most people with different strengths that one wants to play on, and one has made up their experiences. Partly own experiences in good and bad, and partly by having observed others in the role of mediator.

However, it is the parties who are central to the mediation and it is important that they are given an account of their case. The oral statements of the parties regarding their views on the dispute are often spent a lot of time. Whether the parties' lawyers will also hold posts will vary, but this is part of what is being clarified in advance of the start of mediation.

As pointed out in paragraph 4, contract disputes usually contain a number of partial claims. As mentioned above, it makes sense if the parties include these in a matrix where the parties' positions are also shown. After the parties have submitted their oral statements supplemented by their respective lawyers, it may be natural to review the matrix. This review can have several functions, and among them is that the parties turn the focus away from what separates them and onto something they have collaborated to work out.

Mediation is often about psychology.

After one has gone through these steps, the continuation will depend on the situation there and then.

If the parties act constructively and the dialogue is good, it indicates that the dialogue continues in the same space and with a high degree of transparency between the mediator and the parties.

If, on the other hand, the situation is the opposite with a lot of emotion and very little dialogue (if any), a continuation can be that the parties take a break separately, and then move on to separate conversations. In this case, the parties sit with their lawyers in separate rooms and then the mediator conducts separate conversations with each of them.

This stage can be very demanding - for everyone. The point then is not to tire out the party or mediator, but gradually try to get uncovered where the shoe presses. For it is often the case that something weighs more than anything else for a party. Experientially, it is also the case that parties find it easier to open up with only the mediator present in the room, than where the counterparty is also present.

The role of the mediator in such meetings will be, among other things, to obtain as good a picture of the situation as possible. If each party gains confidence in the mediator, the mediator will eventually be able to find possible solutions that may not have been contemplated by either party. In any case, a mediator will have to use what one has of abilities and interpersonal qualities and experience to guide the parties, provide input where it is and especially be a good listener.

In these talks, a mediator's main focus will not be so much on historical matters, but rather what it will take for the parties to find a solution. It is not so important for a mediator to find out who said what, when and where.

The mediator's task is neither to apportion responsibility nor blame, nor to render a judgment or a preliminary decision.

What the mediator should try is to give the parties the opportunity to find solutions themselves with which they can live.

The parties must own the solution they come up with.

Contract disputes are particularly suitable for extrajudicial mediation.

It almost never occurs that one party wins a court case “hundred-nil”. Therefore, it is also more a general rule than an exception that legal fees are awarded. And the legal fees in a construction dispute can be high.

Further, the various partial claims will rarely be of a principled nature and there will be large variations in the amount of the dispute.

The possibilities for finding good intermediate solutions should therefore be great. And if you do not resolve absolutely all points of contention, you will be happy to find solutions to many partial claims.

Solutions that will, in any case, reduce the parties' procedural costs if they still have to have the remaining points of contention dealt with in the judicial apparatus.

‍

6 Formal rules

Chapter 7 of the Disputes Act contains its own rules that the parties may decide to follow in extrajudicial mediation.

Often, the extrajudicial mediator will also require, and in any case prefer, that the mediation be conducted in accordance with these rules.

Of particular interest is mentioned Section 7-2 (2) of the Disputes Act, which states that the mediator must be impartial, independent of the parties and qualified for the assignment.

It is also a clear prerequisite for the mediation that all participants have a duty of confidentiality, cf. Section 7-3 (6) of the Dispute Act. This also includes the mediator and not least everything that one learns in separate meetings. As a starting point, the parties should know that what is communicated to the mediator in separate meetings is confidential unless the mediator is allowed to pass the information on to a counterparty as part of the negotiations leading to a possible settlement. This is to ensure that the individual party can have confidence in the mediator.

If the parties reach an amicable solution to all or part of the dispute, this agreement is enshrined in an agreement, but this is not a judicial settlement. A court settlement can only be reached if the court mediates.

Dispute resolution in the form of extrajudicial mediation

Kortversjonen

1. Introduction

The costs of traditional dispute resolution in the court apparatus have become high. This also applies to contract disputes, and although research shows that there is a certain degree of proportionality between costs and the size of the claims being processed. We have written about this in our article on Traditional Dispute Resolution for the Ordinary Courts, read more here.

Over time, it has emerged that an increasing number of industry players are seeking legal mediation in the hope of bringing the dispute to an end. In any case, it is hoped that parts of the case can be reconciled so as to limit the scope of the case.

Most often it is the case that the judge who prepares the case is the one who mediates the proceedings. It may therefore be a coincidence if the mediator has experience in mediation and with contract disputes. The reason for this is that Norwegian legal practice is based on a so-called coincidence principle. In the case of assigning incoming cases to judges, this must be done without an evaluation of suitability. If you are a judge, you are a judge. This is considered a strength in most types of cases, but should not be a strength when it comes to mediating complex cases such as major contract disputes.

Another disadvantage of judicial mediation is that the parties must first expend relatively large resources in the subpoena and the equivalent before judicial mediation can take place. At the same time, knowing that the fronts tend to be somewhat sharpened when a trial is initiated, it goes without saying that the preparation for a judicial mediation is not ideal.

On the other hand, we have learned that judicial mediation still works - and in part very well. Courts have also gained an increasing focus on judicial mediation as a tool for resolving cases, and now judicial mediation has become virtually mandatory. This is not without reason, and most parties should embrace the possibility of having a conflict resolved through mediation.

However, it is not only through judicial mediation that a case can be properly mediated. In recent years, a very good alternative called extrajudicial mediation has developed, and a very good education is offered for those who wish to undertake such missions. This article shall mainly deal with extrajudicial mediation using certified mediators.

2. Briefly about the dispute resolution mechanisms of standard contracts

This topic is dealt with in separate article which you can find here.

To clarify one thing right away; the standard contracts are silent about judicial mediation and extrajudicial mediation in general.

In contrast, NS 8407 and NS 8417 contain provisions on so-called project-integrated mediation. This is an institute that is mainly used in the really big projects, and not directly relevant to what is the topic of this article. You can instead read more about this in the article on the dispute resolution mechanisms of standard contracts.

More pertinent to mention is that all standard contracts contain provisions on adjudication decisions. Such decisions are, as a starting point, indicative, not legally binding and can thus be said to be temporary.

The preparation of an arbitration case is quite similar to the preparation for a trial before the ordinary courts or arbitration. This means that the parties write, respectively, “writ” and “equivalent” in which they argue their point of view. In addition, the parties provide the documentation that they believe substantiates their own case. The parties are also given the opportunity to file their own supplementary “procedural documents”. The proceedings are exclusively in writing, there are no witnesses and the parties do not explain themselves to the arbitrator.

The treatment of an arbitrator under the system of standard contracts is, to which we shall immediately return, the complete opposite of that which is the practice of extrajudicial mediation.

3. Briefly about the mediator training

Today, one can become certified as a mediator by taking a fairly intense and highly professional course under the auspices of the Mediation Academy, which is a collaboration between Juristenes Utbildningscentrum and the Norwegian Bar Association.

The course runs over four intense days and ends on the fifth day with an exam that is essentially practical. The course syllabus consists of theory in combination with many practical exercises where participants are put on a number of different trials.

The course is popular and participants are often lawyers and judges, but participants with other education and professional backgrounds who see the value in being a certified mediator.

There is an overview of certified mediators at the Norwegian Mediation Centre (www.norskmekling.com), which is run in cooperation with, among others, the Law Society. Many certified mediators are also a member of the Mediation Association (www.medieklingsforeningen.no) that has prepared ethical guidelines for certified mediators, templates, and documents that members can (and should) utilize in assignments as mediators.

4. Preparations for, and benefit of, extrajudicial mediation

An out-of-court mediation with a certified mediator normally begins with both parties contacting the person they wish to mediate in a conflict between them.

After the formality is in place, see paragraph 5 below, the preparation is usually started by the parties writing a brief statement on what the dispute deals with.

The parties should not prepare a subpoena or equivalent, and ideally the parties cooperate in writing a statement to the mediator.

In contract disputes, there are usually a number of different partial claims. The ideal is for the parties to draw up a matrix showing the individual sub-requirements, and preferably taking their positions for each individual sub-requirement. In this way, the mediator gets a good picture of the parties' positions while there are no ambiguities between the parties.

After the mediator has gained this knowledge, one is happy to agree on the framework for the mediation. It will in any case apply to practical matters such as where the mediation will take place, how long to set aside, whether there is a need for a co-mediator, etc.

A not insignificant advantage of extrajudicial mediation is that the parties do not have to prepare subpoenas and equivalents. The parties shall also not provide evidence in the form of documents or witness statements.

This has at least three advantages compared to legal mediation.

First of all, you don't have to take out a subpoena. The disadvantage of taking out a subpoena is that one cannot withdraw a writ once it is filed without simultaneously stating one's claims. You could say it so that “the table catches”.

Secondly, you do not have to incur all the costs that are most often a consequence of drawing up a subpoena and then reviewing the counterparty's liability. Similarly, it is for those who would otherwise have had to review the subpoena and then prepare their response. It is not only the costs of own lawyer that are incurred, but also costs for other types of external assistance and not least indirect costs because people within the organization have to spend valuable time.

Thirdly, conflicts tend to become somewhat acute and the relations between the parties become somewhat more acute and strained when one reads what the other party has written in the subpoena or the equivalent.

‍

5. Conducting extrajudicial mediation

Normally, mediation starts with the mediator gathering the parties in a suitable room.

The room should be designed in such a way that the parties experience meeting as equal parties. There should be good ventilation and you should also have technical aids at your disposal such as AV equipment. In addition, it is important to think about comfort so that one has access to easier dining and premises where the parties can retreat etc.

When initiating the mediation, the mediator will be willing to initiate and how this is done will probably depend on a good part of the individual mediator. Mediators are like most people with different strengths that one wants to play on, and one has made up their experiences. Partly own experiences in good and bad, and partly by having observed others in the role of mediator.

However, it is the parties who are central to the mediation and it is important that they are given an account of their case. The oral statements of the parties regarding their views on the dispute are often spent a lot of time. Whether the parties' lawyers will also hold posts will vary, but this is part of what is being clarified in advance of the start of mediation.

As pointed out in paragraph 4, contract disputes usually contain a number of partial claims. As mentioned above, it makes sense if the parties include these in a matrix where the parties' positions are also shown. After the parties have submitted their oral statements supplemented by their respective lawyers, it may be natural to review the matrix. This review can have several functions, and among them is that the parties turn the focus away from what separates them and onto something they have collaborated to work out.

Mediation is often about psychology.

After one has gone through these steps, the continuation will depend on the situation there and then.

If the parties act constructively and the dialogue is good, it indicates that the dialogue continues in the same space and with a high degree of transparency between the mediator and the parties.

If, on the other hand, the situation is the opposite with a lot of emotion and very little dialogue (if any), a continuation can be that the parties take a break separately, and then move on to separate conversations. In this case, the parties sit with their lawyers in separate rooms and then the mediator conducts separate conversations with each of them.

This stage can be very demanding - for everyone. The point then is not to tire out the party or mediator, but gradually try to get uncovered where the shoe presses. For it is often the case that something weighs more than anything else for a party. Experientially, it is also the case that parties find it easier to open up with only the mediator present in the room, than where the counterparty is also present.

The role of the mediator in such meetings will be, among other things, to obtain as good a picture of the situation as possible. If each party gains confidence in the mediator, the mediator will eventually be able to find possible solutions that may not have been contemplated by either party. In any case, a mediator will have to use what one has of abilities and interpersonal qualities and experience to guide the parties, provide input where it is and especially be a good listener.

In these talks, a mediator's main focus will not be so much on historical matters, but rather what it will take for the parties to find a solution. It is not so important for a mediator to find out who said what, when and where.

The mediator's task is neither to apportion responsibility nor blame, nor to render a judgment or a preliminary decision.

What the mediator should try is to give the parties the opportunity to find solutions themselves with which they can live.

The parties must own the solution they come up with.

Contract disputes are particularly suitable for extrajudicial mediation.

It almost never occurs that one party wins a court case “hundred-nil”. Therefore, it is also more a general rule than an exception that legal fees are awarded. And the legal fees in a construction dispute can be high.

Further, the various partial claims will rarely be of a principled nature and there will be large variations in the amount of the dispute.

The possibilities for finding good intermediate solutions should therefore be great. And if you do not resolve absolutely all points of contention, you will be happy to find solutions to many partial claims.

Solutions that will, in any case, reduce the parties' procedural costs if they still have to have the remaining points of contention dealt with in the judicial apparatus.

‍

6 Formal rules

Chapter 7 of the Disputes Act contains its own rules that the parties may decide to follow in extrajudicial mediation.

Often, the extrajudicial mediator will also require, and in any case prefer, that the mediation be conducted in accordance with these rules.

Of particular interest is mentioned Section 7-2 (2) of the Disputes Act, which states that the mediator must be impartial, independent of the parties and qualified for the assignment.

It is also a clear prerequisite for the mediation that all participants have a duty of confidentiality, cf. Section 7-3 (6) of the Dispute Act. This also includes the mediator and not least everything that one learns in separate meetings. As a starting point, the parties should know that what is communicated to the mediator in separate meetings is confidential unless the mediator is allowed to pass the information on to a counterparty as part of the negotiations leading to a possible settlement. This is to ensure that the individual party can have confidence in the mediator.

If the parties reach an amicable solution to all or part of the dispute, this agreement is enshrined in an agreement, but this is not a judicial settlement. A court settlement can only be reached if the court mediates.

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