How mediation works will depend upon the type of mediation you enter into, your mediator and how the parties in dispute approach the mediation process and how they act once in the mediation.
- If we use as an example, a commercial mediation that is conducted face to face over a commercial dispute, so Mr X suing Company Z for a breach of contract.
Any face to face mediation will start with a pre mediation meeting, which gives each party the chance to ask the mediator or mediators if there is more than one any questions about the mediation process and the mediators role, and to highlight anything that they think is key and that the mediators should know before the mediation starts.
At this point the mediator will also get all those present to sign the agreement to mediate which simply is a document which explains what the mediation process is, the role of the mediator amongst various other aspects such as the confidential and voluntary nature of the process.
Once the pre mediation meetings have taken place with each, all parties, unless the parties refuse, or there is a specific reason not to, the first opening joint session will take place.
How Mediation Works – 1. First opening joint session
This is where the mediator will introduce themselves and explain in detail what their role is and how the process is going to work as well as explain what the ground rules are, such as speaking one at a time amongst others and what they do and don’t expect from the parties.
The session also allows the parties to deliver their position statements through their solicitors and or to deliver them direct, a position statement typically will be a summary of the background of the dispute, where the parties are at now and what they wish to achieve going forward to end their dispute.
This allows for the parties and their solicitors to discuss the dispute with each other direct under the guidance of the mediator, a question and answer session, explanation and for a dialogue to be established.
There is no pattern or science behind how long a first opening joint session will last this will simply depend upon how the parties interact with one another, keeping parties together can be very constructive for the mediation process however it can be very destructive also.
As a mediator I try my best to keep parties together for as long as possible, however as soon as I sense from the atmosphere, what is being said, what has not been said and the moods of the parties, something which is not going to progress the mediation, then I end the first opening joint session and ask to see the parties separately.
The purpose of the separate meetings or caucuses as some people refer to them are to allow the parties to air their views and speak in confidence in the absence of the other party, as they may feel more comfortable sharing certain issues without the other side present.
Any separate meetings should last around the same length of time with each party where possible. The mediator will use a series of separate and joint meetings throughout the day until an agreement is reached, whereby that will then be committed to writing and will be drafted as a consent order if court proceedings have started or a binding contact between the parties if court action has not started.
How Mediation Works – 2. Your mediator
The more experienced your mediator is the more your mediation will work, as they will know how to lead the parties, when to split them for separate meetings, bring them back together for joint meetings, how to prep them in what they perhaps should and should not say and do, how to guide their negotiations and guide them in making, accepting offers.
How Mediation Works – 3. The parties approach to the mediation
Even if a mediation in terms of the process has been followed, you have an experienced mediator, the mediation will only work if the parties approach the mediation in good faith and are open minded and willing to work and achieve a solution, if the parties are not willing to negotiate and compromise then the mediation will only go so far.