Whilst being a flexible process with no set format, mediation has several key stages. Mediation will usually take place with the parties at the same venue and in different rooms. There is usually one room per party plus a room for the mediator whose room is large enough to bring the parties together for a joint meeting if such a meeting is likely to be beneficial in securing a settlement.
Overview of the stages in a typical mediation
The key stages in a typical mediation are:
- The opening,
- The exploration,
- The negotiation,
- The settlement.
The mediator will usually hold a joint session during which each of the parties has the opportunity to put forward their side of the dispute. If it is particularly difficult for the parties to be in the same room together, this step could be missed and the mediation progress with the mediator meeting the parties in private and in their separate rooms. There are benefits however to having an opening meeting and whilst it is unlikely to be a comfortable time for either party, keeping an open mind and enabling the mediator to facilitate the process can make a difference and bring an earlier resolution. A joint session will start with a statement by the mediator covering the ground rules for the day and more about the role of the mediator.
Parties’ opening statements
After the introduction, the mediator will usually invite each person present to make a short statement in turn. After each party’s opening statement, the mediator may ask questions to clarify any points that have arisen. The mediator may also try to identify any common ground and agree with the parties a list of issues and an agenda. The mediator will end the joint session when no further progress can be made until the parties have had the opportunity to speak to the mediator in a private session.
Following the opening phase, the mediator will have private meetings with each party. These meetings are confidential and allow the parties to explore the issues and discuss settlement with the mediator without the other side being present. The mediator will find out more about the background to the dispute and gain a better understanding of the parties’ needs and motivations in order to help the parties find their own solution to the dispute
At this stage, there can be a lot of waiting around whilst the mediator is in private sessions with the individual parties so it is important to be prepared for this. The mediator may ask the parties whilst they wait to prepare or consider aspects of their case to assist the parties exploration of the key issues.
Considering settlement options
In order to help the parties start to move towards settlement, the mediator may seek to understand what a settlement would mean to the parties rather than focusing on the rights and wrongs of the past and also explore non-monetary issues and concerns. Being prepared with key information and ensuring that all those with decision making responsibilities are present or available is vital to the success of the process.
The mediator is present to facilitate the mediation and not to make any decision or assessment of the merits or otherwise of a case. A mediator will help reality test each case and ask questions to help each party consider their position.
The negotiation phase of mediation marks the point of transition from general exploration and discussion of the past, to solving the problem and dealing with the future. There are different ways in which offers of settlement can be presented and the mediator will discuss with each party how this can be best approached.
Once the parties have agreed terms of settlement, it is important to document what has been agreed as all discussions, negotiations and agreements reached in mediation are non-binding until written down and signed by the parties. The signed settlement agreement concludes the mediation. If there has been court proceedings, a Court Order is drafted to conclude the litigation. Both parties leave a successful mediation with the litigation and dispute behind them.