Mediation is a structured, but flexible process. While each mediator has his/her own style, there is a certain structure that can be identified, and it is useful for parties to mediation and their legal representatives, to be aware of this structure beforehand so that they know what to expect.
The mediation process also varies depending on the parties and the type of matter being dealt with. The process outlined below is intended only as a brief introduction.
Before mediation, the mediator will often contact the parties to introduce him/herself, explain the process and deal with anything that needs to be dealt with before the mediation itself. Disputed issues are only dealt with once the mediation begins.
On the day of the mediation, the mediator will start by making an opening statement emphasising his/her neutrality and setting out the ground rules for the mediation. Then, the mediator will give each side the opportunity to tell him/her about the dispute from both of their perspectives. Everything disclosed during mediation is strictly confidential and without prejudice.
The next stage is for the mediator and the parties to develop a full understanding of the dispute, the parties’ positions, and what they aim to achieve in the mediation. Here, the parties may be split into separate side meetings, so that the mediator can explore various aspects of the dispute. These include: identifying the issues, parties’ interests and needs and the underlying cause of the conflict. At no point does the mediator get involved in evaluating the merits of the dispute.
Then the mediator will assist the parties in developing a range of creative options for consideration in possible agreement. This may involve an initial brainstorming session by the parties and the options generated can then be modified and improved, rather than opposed.
Next, the parties will be encouraged to choose options and negotiate, with the aim of choosing a solution. If no solution is reached, the parties may go back a step, say to brainstorming, to look at more options. Once a solution is agreed upon, the agreement can be finalised and put in writing.
So, it’s not necessarily ‘my cake or yours’. In mediation the parties might discover that the chocolate icing should be yours, because that’s all you’re really interested in, and I will have the vanilla sponge. Bingo!!
This article has been written by Clea Rawlins, an Associate in the Commercial Department of Garlicke & Bousfield Inc
