Mediation is a flexible process and the mediator will guide the parties through the process in a way to enable the parties the best possible opportunity of resolving their dispute.
Whilst there is no set structure or order, there are some keys stages which can be expected in order to progress through the issues in dispute to a settlement.
Overview of the stages in a typical mediation
The key stages in a typical mediation are:
- The opening phase.
- The exploration phase.
- The negotiation phase.
- The settlement phase.
The mediator will usually hold a joint session where each of the parties has the opportunity to put forward their view of the dispute. If issues make it particularly difficult for the parties to be in the same room together, this may be avoided and the mediation progress with the mediator meeting the parties in private. There are benefits to having an opening meeting and whilst it is unlikely to be a comfortable time for either party, keeping an open mind and enabling the mediator to facilitate the process can make a difference and bring an earlier resolution. A joint session will start with a statement by the mediator covering the ground rules for the day and more about the role of the mediator.
Parties' opening statements
After the introduction, the mediator will usually invite each person present to make a short statement in turn. After each party's opening statement, the mediator may ask questions to clarify any points but this isn’t a out of court cross examination process. The mediator may also try to identify any common ground and agree with the parties a list of issues and an agenda prior to the mediation. The mediator will end the joint session when no further progress can be made until the parties have had the opportunity to speak in a private session.
Following the opening phase, the mediator will have private meetings with each party. These meetings are confidential and allow the parties to explore the issues and discuss settlement with the mediator without the other side being present. The mediator will find out more about the background to the dispute and to gain a better understanding of the parties' needs and motivations in order to help the parties find their own solution to the dispute
At this stage, there can be a lot of waiting time for parties whilst the mediator is in a private session with the other side so it is important to be prepared for this.
Considering settlement options
In order to help the parties start to move towards settlement, the mediator may encourage them to think about the future, rather than focusing on the rights and wrongs of the past and also explore non-monetary issues and concerns. Being prepared with key information and ensuring that all those with decision making responsibilities for a party are present is vital to the success of the process.
The mediator is present to facilitate the mediation and not to make any decision or assessment of the merits or otherwise of a case. A mediator will help reality test each case and ask questions to help each party consider their position.
The negotiation phase of a mediation marks the point of transition from general exploration and discussion of the past, to solving the problem and dealing with the future. There are different ways in which offers of settlement can be presented and the mediator will discuss with each party how this can be best presented.
Once the parties have agreed terms of settlement, it is important to document what has been agreed as all discussions, negotiations and agreements reached in mediation are non-binding until written down and signed by the parties.
For more information about using mediation and how it can work for you, please contact Sarah Canning on 01604 828282 or email firstname.lastname@example.org.