Browsing by Author "Salokangas, Hanna"

Tiivistelmä – Referat – Abstract This thesis deals with mediation of commercial conflicts in contractual relationships between all sizes of corporations. The contracts are based on continuous co-operation and they are binding in the long-term. The research is particularly important because mediation has not become very established in Finland. The trend for mediation has, however, been growing in Finland. Furthermore, there are many misunderstandings about mediation that deserve to be corrected. It has been proven that when the general public searches for a mediator, it does not usually know how mediation is defined. Individual mediators may offer processes that are completely different from one another. Free, out-of-court mediation has been chosen as the subject because it is a reasonable, probably relatively cost-effective and flexible, effective, voluntary, confidential and future-oriented process. In the mediation process, the parties are empowered to find their own settlement and retain control; resting on the parties’ consent and acceptance, helped to maintain the business and develop the mutual relationship by improving the communication. Mediation is suited for settling commercial conflicts in long-term contractual relationships. Such contractual perspective forms the basis and background for this thesis. Another governing perspective relates to procedural law, i.e. the parties’ procedural rights such as the protection under the law, self-determination, mediator neutrality and impartiality, constituting a fair mediation process. The most common division between different mediation models is the division between facilitative and evaluative mediation. My hypothesis is that these two mediation models are very different. Furthermore, facilitative and evaluative mediation should principally not be combined in the same mediation process in order to ensure and protect the parties’ procedural and other rights. The central questions this thesis aspires to answer are: What are the most important elements in mediation ethics and how will ignoring these affect the mediation process and the parties? Should mediation of commercial conflicts be regulated? Does facilitative or evaluative mediation form a best practice of mediation? If so, does this result in any consequences as regards to the other mediation model? The practice of mediation regularly generates ethical dilemmas. Mediation ethics have not yet been sufficiently noticed in Europe, but it has been the subject of active discussion in the U.S.A. There are multiple scenarios that can lead to unwanted ethical problems in mediation. Mediator neutrality and impartiality, the role of the mediator, and self-determination are ethical problems discussed further in this thesis. Specific issues relating to evaluative mediation and evaluations in general are discussed. The role of the mediator, both the principal role and other roles, are centrally connected to neutrality and impartiality. The qualities of mediation and mediation as a process of conflict resolution in general closely interact with issues relating to a mediator’s role. Mediators can assume several roles in the mediation process. The mediator’s understanding of his or her role is an important part of ethical questions. Two proposals to handle the issue with facilitative and evaluative mediation are presented. Furthermore, two examples of mediation of fictive commercial conflicts are discussed in order to demonstrate the significance of the choice between facilitative and evaluative mediation for the content, satisfaction and outcome of mediation as well as the parties’ protection under the law, the parties’ choice to engage in mediation, their choice to settle, and the settlement’s quality.