What is the Mediation process?
When parties have agreed to attend mediation to try and resolve their dispute, they will then appoint a mediator and draw up, or have drawn up a mediation agreement. The agreement will outline the fact that the parties have consented to go through mediation as an alternative form of dispute resolution, with the intention of reaching a settlement.
Contained in the agreement will be:
a record of the date, time and venue for the mediation – usually a neutral location (e.g. The Dispute Clinic).
the mediator’s details and role in the conflict resolution.
the details of all those who will be present i.e. the parties and their respective lawyers.
costs associated with the mediation and how the costs will be split between the parties.
the fact that the mediation proceedings will be confidential.
the fact that the mediation will be conducted without prejudice.
Once the agreement has been signed by both parties, they can prepare for mediation by exchanging written submissions along with supporting documents in advance of the mediation that will also be shared with the mediator so that they can prepare for the negotiations. This allows each party to have a grasp on the other's position and each can prepare what they are hoping and/or willing to negotiate.
2. Introduction to the Mediation
The mediation will usually begin with a joint, introductory session led by the mediator. During this session, the mediator will introduce themselves and explain how the mediation process will commence. Each party will then have the opportunity to give opening statements articulating the facts and circumstances surrounding the dispute. These opening statements will allow both parties and the mediator to define the conflict and indicate to the mediator how to help facilitate the negotiations.
3. Private Meetings
After opening statements, the mediator will show each party to a private room in which the parties will be able to discuss the points on which they are willing to compromise and negotiate. The mediator will travel between parties while these discussions are taking place and help them design a consensual settlement. The conversations had during the private meetings are confidential, so the mediator will not reveal what has been said by the other party unless they have explicitly given their consent for information to be shared. During these meetings the mediator will remind the parties why they have chosen mediation and may encourage the parties to negotiate directly with each other without their lawyers present. The goal at this stage will be for the mediator to assess the strengths and weaknesses of each parties demands and suggest options and alternatives for settlement. Decision making and negotiations between parties will continue until one of three things happen:
the parties reach an agreement.
the mediator declares an impasse and ends mediation.
the mediator declares an impasse and suggests mediation continues in a subsequent session.
4. Agreement or Further Arrangement
If the parties reach an agreement, the terms will then be written by the parties themselves usually in the form of a legally binding contract. This will happen during a joint final meeting where everything discusses and agreed upon will be clarified. Mediations can continue for any period of time after the initial agreed upon mediation day is concluded if an agreement is not finalised and both parties wish to continue at a later date.
If you have chosen to conduct your mediation online the process will work in exactly the same way. Video conferencing platforms allow for the creation of ‘breakout rooms’ which will have the same effect as parties having private rooms for their individual discussions. The mediator, as the moderator of the call, will be able to enter each party’s room in order to perform their role as facilitator of negotiations.