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Mediation is a flexible process, and very different from court which has strict rules and timelines. This can mean that it is difficult to know what to expect in mediation, or how best to prepare for it.
This section of the Guide will explain the different stages of the mediation process and how the process works in different situations and different disputes.
A mediation broadly consists of five stages:
If the mediation doesn’t result in an agreement, the parties still have options and we’ll look at these too.
If you're a law graduate, a trainee in a firm or a professional looking to get a rapid understanding of how commercial mediation is used to achieve cost efficient results for parties in dispute then this commercial mediation insight course will give you the foundations you need in just two hours.
Lets now take a look at the different mediation stages in more detail:
In the pre-mediation stage, the mediator is selected by the parties, usually with the help of their lawyers. The date and venue for the mediation will be arranged, and the mediator will receive some initial information about the dispute.
Usually the lawyers will send some information relating to the background of the dispute, this is usually a booklet of documents or a ‘position statement' to the mediator which outlines what the dispute is about and what their client is looking for.
If a court case has been initiated, copies of the legal papers will be included.
The mediator will usually have a pre-mediation meeting with the parties, and sometimes their lawyers, to introduce themselves, meet the parties, find out a bit about the background of the dispute and explain how the mediation process will work.
These meetings will be separate, and usually take place by phone or over Zoom.
The Agreement to Mediate is an important document and is the contract between the mediator, the parties and any legal advisers or experts involved in the mediation process. This is sometimes referred to as the Mediation Agreement and before the mediation begins, everyone will be asked to sign it.
The agreement guarantees the confidentiality of the process, sets out the role of the mediator and explains how the mediation process will work.
In some countries like Ireland, it also has to cover things like the right to independent legal advice.
It will also include what the mediators fees are and when and how they have to be paid.
The Agreement to Mediate is usually signed after the pre-mediation sessions before the first meeting, or sometimes at the first meeting.
There are a number of other documents that the mediator needs to prepare and if you are a newly qualified mediator then it's important to have all these in one place and reviewed and updated when necessary.
The opening of the mediation is the most formal part, although how formal depends on the type of dispute being mediated.
The mediation itself begins when everyone arrives in the mediation room - physical or virtual.
Most mediations will start with a joint meeting, some call this a plenary and it's where the mediator, and then the parties make what are called opening statements.
The mediator’s opening statement usually begins with the mediator officially welcoming the parties, explaining the process and how the mediation is going to work and reminding everyone about confidentiality and other important aspects of the process.
If you want to see what a mediator’s opening statement looks like, you can watch this short 4 minute video below where the mediator explains the process, the role of the mediator and sets some ground rules for the conversation.
After the mediator's opening is finished, he or she will then ask the parties to make their opening statements.
Sometimes, the lawyers in the mediation will be keen to make the parties’ opening statements on their behalf to make sure they get all the legal points across or to protect their clients.
Most of the time it is better for the parties to make their opening statements themselves, so that they can hear directly from each other and talk about the issues that are most important to them. Sometimes this is the first occasion that the parties have spoken directly to each other and is just one of the reasons why a mediator will want to conduct the opening of the mediation in this way.
There are many other benefits to starting the mediation with a joint meeting format and we’ll cover these a little later.
The mediator will make sure that everyone who speaks has time to do so and won’t be interrupted or heckled by anyone. After the opening statements the mediator will usually ask the parties some questions and encourage them to talk more about what happened and what they want from the mediation.
Opening statements don’t happen this way in all mediations.
In some cases where conflict is very high or parties can’t or refuse to be in the same room the mediator will start the process separately with each party and explain the process to them.
At the start of mediation you only get to see what's on the surface of the dispute.
These are often the legal issues.
The conflict underneath is usually much more complex, and needs to be uncovered and addressed in order to move forward and the exploration stage of the mediation is where this begins.
In the exploration stage of the process, the mediator will start to explore what’s going on under the surface of the dispute. They will tend to ask lots of open questions and encourage the parties to talk about the dispute, what’s important to them and what they may be worried about.
The mediator will also encourage the parties to talk directly to each other and share information.
Mediators use a range of skills and techniques to uncover what is especially important for each side and what their priorities are. They will try to draw out not just the legal arguments and positions, but also what the parties interests and needs are, and how they might see things being resolved.
If you want to see these mediation skills and techniques in action and earn a certificate in commercial mediation then take a look at this introduction to commercial mediation course. The course is independently accredited and will set you on a career path in commercial dispute resolution.
The negotiation stage is often where parties get stuck and this is just one of the benefits of having a mediator present who assists the parties to negotiate.
By this stage in the mediation process everyone usually has a better understanding of what is important and what they, and the other side, need and want in order to resolve the dispute.
The first phase of the negotiation stage is called the ‘option generation’ phase and it’s where the parties, with the help of the mediator, begin to generate options.
The mediator will facilitate a process of brainstorming where each party can explore options for settlement. Options are then organised in order of priority - the extent to which they satisfy the needs and interests of all parties. They will use negotiation skills and strategies to conduct exercises called reality testing and narrowing of options into settlement packages.
Generally speaking, most people are not very sophisticated when it comes to negotiation and sometimes they can resort to underhand or unhelpful tactics. Fortunately the mediator is trained to respond to these tactics and can usually assist everyone to negotiate in a constructive and productive way.
The negotiation stage can take quite a long time and involve a lot of back and forth between the parties and also requires input from the lawyers. It is not unusual for parties to get tired and a little disheartened, but mediators are skilled at keeping people on track and building momentum towards settlement.
When the parties reach the Agreement stage it means they have finally agreed on how to resolve the dispute and are now ready to put it down in writing.
The mediation, however, is not quite finished yet.
The agreement, usually called the mediated settlement agreement, has to be drafted and signed and this is usually done by the parties lawyers.
The mediator still plays an important part in this process and keeps everyone on track ensuring all details and aspects of the agreement are recorded, not just the legal points.
The lawyers will also make sure that the agreement is in the right format, depending on what kind of agreement the parties want and need. For example, it might be in the form of a contract, or an agreement that will later be brought to a court and made into a court order. (A court order is the document that is usually issued by the court when the judge has made their decision. In the case of mediation, the terms of settlement can be put into such a document which means it is easier to enforce if one party does not do what it has agreed to do.)
Sometimes, in family mediation for example, extra steps will need to be taken before the agreement is finalised, such as a bank needing to approve changes to a mortgage, or a properly to be put on the market. More on this in our section on family mediation.
Not every mediation however ends in agreement.
There are many reasons for this.
Sometimes the gap between the parties interests and needs is irreconcilable.
Sometimes mediation has taken place too early or too late in the life of the dispute.
There are many factors that can stifle the mediation process but a skilled mediator can often anticipate these difficulties and use their skills to carefully navigate a path through.
Often when settlement isn’t achieved on the day of mediation, an agreement can be reached later, especially if the parties and their lawyers keep the lines of communication open.
Some disputes will have to go to another process however, and it will be important that the mediator reminds everyone of the confidentiality of the mediation process before they leave, and that the parties have access to advice on what to do next.
There are two different types of meeting format in mediation.
Joint meetings usually involve everyone who is in attendance at the mediation. Separate meetings are usually meetings between just the mediator and one side.
One of the fears many parties in mediation have is having to face the person or people they are in dispute with. They have visions of showdowns in the mediation room or losing their temper or getting upset.
The mediator will usually meet the parties both together and separately. In joint meetings the mediator will make sure that everyone feels safe and as comfortable as the situation allows, and that everyone gets a chance to speak.
They won’t force any party into a joint meeting if they are reluctant to do so, but will help them overcome whatever concerns they have.
Most people find that having a joint session managed by the mediator can be really helpful as they get a chance to tell their side of the story. They will, be listened to and can also hear what the other person has to say, which can be very different to what they’re expecting to hear.
The mediator will also meet with the parties separately and these sessions are called single sessions, one to one’s or sometimes a caucus.
These sessions are confidential, so whatever the party tells the mediator in a single session stays in the room and won’t be shared with the other side. This can be an opportunity for parties to share concerns, aspects of their position they are worried about and also options that they are not yet ready to share with the other side.
Sometimes the mediator may also want to meet with just the parties lawyer - called a cross-caucus. These are sometimes used to help iron out some legal questions or encourage them to work together on options.
In mediations of civil and commercial disputes, the main mediation is usually scheduled for a day.
This means that all parties and their lawyers can put everything else on hold for that day to focus on the mediation, and if parties have to travel they won’t have to do so repeatedly.
Matters may not always resolve in a day, however, so a second or further day may need to be scheduled, particularly if the dispute involves multiple parties or is a complex one.
Further online sessions, like the pre-mediation meetings, may also be arranged.
If the mediation is taking place entirely online, it is likely that it will happen over a series of shorter sessions of a few hours, rather than a whole day. It can be very tiring to be online in front of a screen all day. The process may therefore be stretched out over a series of days or weeks rather than happening all in one day.
Different types of mediation are also more likely to happen over a series of shorter sessions, such as family mediation and workplace mediation.
This can be to allow for practicalities, such as both parents having to attend and childcare being needed, or because those processes tend to be more emotionally demanding.
You can read more about how these different mediation processes work in the chapter on Mediation Services.
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