Every dispute is different and if necessary, mediators are skilled at designing a bespoke process that is appropriate to the issues in contention. This page illustrates what happens in the majority of cases.
Before the mediation takes place the mediator will have agreed with the parties the terms of the mediation, the location, the planned time to set aside, who is going to attend, and will have sent all the parties a draft of the formal mediation agreement which will bind participants to the process. The mediation agreement covers matters such as confidentiality.
In addition, the mediator will have asked the parties to provide him/her with material to read so that the mediator is familiar with the issues before the day of mediation. Most mediators also ask for a short summary statement from each party - see ‘Guidance for clients preparing for mediation’ and ‘Guidance for solicitors preparing for mediation’ on this website.
It is important that all parties to the dispute send to the mediation meeting someone who knows and understands the issues and someone who has the authority to reach a settlement. Of course advisors such as solicitors or accountants or surveyors can also attend. But do not bring friends or colleagues just out of interest. As a generalisation, the smaller the team from each side, the higher the chance of success.
On the day of mediation, the mediator will firstly have a short private meeting with each party to make sure that they are prepared for the day. Each party will also be asked to formally sign the mediation agreement.
Then there will be a joint meeting at which all parties are present. Each party is asked to make a short presentation – say no more than five to ten minutes – where they can make their claims or defences; clarify points; make apologies; suggest solutions or make other points. This is the chance for each party to make sure that the other party or parties understand their point of view.
It is better that this opening statement is not confined to just repeating legal arguments. It should be used for making commercial points or personal relationship points as well. Each party is asked to listen to the other’s presentation without interruption. Then the mediator will usually allow time for dialogue – to pick up on points that the other side have made.
Once the mediator is sure that the issues are on the table and clearly understood, the joint session will probably break up and private sessions will begin.
In private sessions whatever a party tells the mediator remains confidential unless the party agrees otherwise. This allows parties to be frank with the mediator. In early private sessions do not be surprised if the mediator does not rush to ask ‘what do you want to settle at?’ Early in the process the mediator is much more likely to want you to explain your views. The mediator will want to try and understand your wants and needs and priorities.
Each private sessions might last anywhere between five minutes or an hour. A mediator might spend a long time with Party A but a short time with Party B. Don’t read anything into that. The mediator might ask to see the legal representatives alone, or might want to see the parties alone. The mediator might convene a joint meeting to focus specifically on one part of the problem. One of the skills of mediators is to structure the dialogue and process so that it moves matters along.
The private sessions will move away from the past ‘How did we get into this mess?’ ‘Whose fault is it?’ and start to look forward ‘How can we get out of the situation we are in?’ Meetings will move towards solutions, perhaps looking at the shape of a deal to be done, or different models of what could be done before getting to actual figures.
While they remain totally independent and neutral, mediators will test the reality of what they hear in private from each party. Do not be surprised if, in private, the mediator asks you to face up to what happens if no settlement can be achieved. A mediator might also help you frame an offer in a way that it becomes more palatable to the other side. Again, whilst remaining neutral, mediators can bring to the process their business and lifetime experience in helping see what might help in working towards settlement.
Assuming a settlement is reached, the parties should then put this in writing. If the parties have solicitors, then their lawyers will usually work together to draft the settlement agreement. The mediator will also oversee this to check that all interests have been represented.
In a time-limited mediation (say a two hour mediation) some of these stages have to be compressed, but they will be there.
While the mediator will drive the process to ensure that all the parties are moving forward and avoiding entrenchment, the mediator does not decide the outcome. The offers and counter offers come from the parties. Thus each party remains in control of the outcome.
If there is no settlement the mediator will probably have one last check with each party and then terminate the mediation. Sometimes a mediation can be suspended and the parties re-convene after time for reflection.
Even if a mediation is ended without settlement, it is not usually time and money wasted. Parties will come away with a much better understanding of their own strengths and weaknesses and those of the other party/parties. Very often a dispute that did not settle within the mediation is settled within a short time frame (usually by lawyers continuing dialogue).
