MEDIATION PROCESS
WHAT IS MEDIATION?
Mediation is a quick, effective and informal way of resolving disputes. It is particularly valuable when parties need to continue to live and work together in the future.
The mediation process is not set in stone and is adapted to suit you. A mediation agreement will be signed by, or on behalf of the parties either before or at the mediation and it sets out our mutual responsibilities and contains some basic principles such as confidentiality and cooperation that are important features of the process.
View my standard mediation agreement: Mediation Agreement
WHAT IS THE MEDIATION PROCESS?
Mediation is an opportunity for parties in dispute to resolve their dispute by agreement. As mediator, I will help you to identify the issues needing resolution and to develop a range of options for resolving them. If appropriate, the parties will reach a mutually acceptable resolution of some or all of those issues which will be formalised by a binding written agreement.
Agreement is usually reached in mediation, if it is the outcome sought by the parties. Reconciliation or improved understanding are also positive outcomes of mediation. My preferred definition of mediation is “a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement and understanding among them”. The majority of disputes may be mediated, if the parties are genuinely prepared to try and work together understanding each others perspectives and if appropriate resolve their differences by.
WHAT IS THE MEDIATOR’S ROLE?
There are many different mediation models and approaches. In essence, I believe mediation allows parties to have a structured discussion in which disagreements are regarded as problems to be solved rather than battles to be won. My role as mediator is to:
- Establish a constructive atmosphere and facilitate a conversation between the parties about their respective views
- Assist the parties to isolate the key issues and to identify and focus on their underlying
- Assist the parties to develop a range of possible options for resolution of the issues
- Assist the parties to reach an agreement resolving their issues.
It is not my role to give legal advice, an opinion on the merits, or decide the outcome of the dispute for the parties. I will however, in a private meeting, question each party about the merits of their case and the potential likely outcome should the dispute not be resolved in mediation, assist the parties to reality test their own position, assist them to understand the potential for resolution (the zone of settlement) and offer negotiation coaching, if required.
WHAT ARE THE STEPS IN THE MEDIATION PROCESS?
Pre Mediation
The steps in my mediation process are usually as follows:
Agreement to Mediate and Appointment of Mediator
- Mediation is voluntary, so agreement from all parties is required before mediation can begin. Any party may end the process at any time.
- The parties agree to appoint me as an impartial mediator. This is confirmed in a written agreement, signed by the parties and me.
Preliminary Conference
I communicate with all parties or their lawyers to:
- Agree on a time and place for the mediation;
- Agree whether any documents or further information needs to be provided in advance to ensure all parties are properly prepared and there are no surprises at the mediation;
- Agree on the process e.g. whether I need to meet with the parties separately in advance of a joint meeting.
- A person from each party with authority to settle the dispute, needs to be present at the mediation. The parties may agree that other people be present at the mediation, for example legal advisers, expert advisers, support persons. These people will be required to sign a confidentiality agreement.
The Opening Statement
- Following introductions, I make a short statement explaining the mediation process and my role and answer any questions from the parties.
Parties’ Statements
- I will then ask each party in turn to briefly outline their perspective of the dispute and the key issues they wish to raise in the mediation.
Issue Identification and Agenda Setting
- Following the parties’ statements, an agenda will be developed setting out the key issues.
- The issues and options for their resolution will be explored with all parties present. My aim during the mediation will be to facilitate discussion and promote an understanding of the different perspective each party brings to the dispute.
Private Meetings
Private meetings, where I meet on a confidential basis with one party at a time, may also be held during the mediation.
The aim of private meetings is to allow parties an opportunity to raise additional issues with me in private and to allow me to test any proposed settlement options. Unless specifically authorised to do so, I will not disclose anything said in a private meeting, to another party.
Recording Agreement
If agreement is reached, the parties or their legal advisers will record it in writing. The parties will sign the written agreement.
Once signed, the agreement is binding. If agreement is not reached, the parties are free to try and resolve their dispute in other ways, such as court action. In some cases, agreement may be reached later, after the parties have had time for further reflection, in negotiations between the parties or their lawyers, or in another mediation meeting.
PRELIMINARY CONFERENCE CONSIDERATIONS – DO WE NEED ONE?
A preliminary conference is an opportunity for me to clarify any issues about the process, make arrangements for the mediation and establish that all parties are ready to mediate.
The preliminary conference provides the opportunity:
- For parties (and their lawyers, if present) to indicate their expectations of the process and for me to explain my approach to mediation.
- For me to ensure that mediation is the appropriate dispute resolution process and that I am without any conflicts of interest For the parties to agree to the terms under which the mediation is taking place.
- For the parties to agree whether further steps need to be taken in advance of the mediation, for example, the exchange of documents or any further information or whether any expert reports are required.
- For the parties to agree on the information to be provided to me in advance of the mediation. It is helpful for me to receive a brief statement of the issues and possible options for settlement on a confidential basis in advance of the mediation.
This gives me the background to the dispute and also helps the parties to focus on the main issues and possible settlement options prior to the mediation. Alternatively, the parties may wish to agree a statement of facts or to exchange issues statements in advance of the mediation.
- For the parties to agree who will attend the mediation, including support people if needed. If third parties are going to be present, it will be necessary for them to sign a confidentiality agreement. It is important to ensure that everyone who could be affected by the outcome of the dispute is represented at the mediation. It is also important that those present have the authority to settle should an agreement be reached.
- For a convenient date and venue for the mediation to be arranged.
THE ROLE OF LEGAL ADVISERS IN MEDIATION
- To advise and assist their client in the course of the mediation;
- To discuss with each other, and with their respective clients, legal, evidentiary or practical matters which might assist to resolve the dispute.
- To generate possible options for the resolution of the dispute.
- To evaluate with their clients any settlement options generated in the light of the alternatives to a negotiated agreement.
- To prepare the terms of settlement or heads of agreement recording any agreement