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What is Mediation?

The classic OED definition is:- “Intervention in a dispute in order to resolve it”. More practically, it is perhaps better stated as: “An opportunity for two parties, with the assistance of an impartial mediator, to discuss a problem in an informal setting and together work out a mutually acceptable solution”

Why choose mediation?

1. Mediation is a ‘no-blame’ forum
2. No judgment or award is made
3. The parties find their own solution
4. Speedy, low cost, informal
5. Confidential and without prejudice
6. Non-binding until agreement signed

Basic Procedure

The basic procedure in outline
1. Introduction and opening statement by mediator – in full session
2. Opening statements from each party – in full session
3. Private sessions between mediator and parties
4. Closing statements from each party; agreement; in full session

The 5 Stages of Mediation

Preparation (of the bundles)
Opening (of the mediation itself)
Exploration (of the parties’ positions)
Negotiation (to seek an agreeable resolution)
Closing (settlement agreement)
For present purposes, consider that preparation is already completed.
We start at stage 2 – Opening of the Mediation itself

Stage 2 – The Opening (1)

The mediator’s introduction and opening statement; of this, the first part covers:-
Introduction by the Mediator
Mediator’s opening statement
Introduction of the parties
Confirmation that the mediation agreement has been signed
Confirmation that parties have authority to settle
Congratulate parties that mediation has been selected
Indication of historical success rate

Stage 2 – The Opening (2)

The second part covers:-
Mediator is impartial facilitator
Mediator has no conflict of interest
Mediation apportions no blame and makes neither judgment nor award
The process is voluntary and a party can leave at any time
All is confidential, privileged and without prejudice
All is non-binding until agreement signed

Stage 2 – The Opening (3)

This third part covers:-
The mediator controls the process – the parties control the agenda
After the mediator’s opening statement, each party may make an opening statement outlining their position
At this point, the process may continue in full session but more likely is that the mediator will conduct private sessions, alternating between the parties
Such sessions will continue until it appears that a solution may be close. At this point the mediator will return to a full session
The private sessions are confidential within themselves: nothing said by one party may be disclosed to the other party without express consent
Mediation is confidential and without prejudice: no concession, suggestion, statement or proposal made may be used later in any arbitration or litigation proceedings

Stage 2 – The Opening (4)

Ground rules, covering:-
Facilities – tea, coffee, WC etc
Phones off – no interruptions or recording
Respect: be polite, no abuse, do not interrupt a speaker, take notes and mention later
Time constraint
Is all the above understood?
Any questions at this point?

Stage 3 – Exploration (1)

The Parties’ Opening Statements
Following the Mediator’s Opening Statements, the parties have the opportunity to present their opening statements.
It is normal practice for the claimant to open, but where a counter-claim exists, the Mediator may ask the counter-claimant to start.
The purpose here is to summarise in outline – not detail – their respective positions as already described in their written bundles under Stage 1 (Preparation).
After the opening statements, the mediator invariably calls for private sessions, turn and turn about with the parties.

Stage 3 – Exploration (2)

The Early Private Sessions
These are intended to help the parties better understand each other’s position
The mediator will probably commence the first private session by building rapport with each party to establish confidence
Papers may still be exchanged
The mediator will seek to probe the issues under which may hide options for resolution
What he will want to see is PIN – [Position – Interests – Needs] and find where ‘Interests’ are similar and ‘Needs’ overlap
Indeed, some mediators may ask each party at this stage – ‘What do you really want?’
At the end of every private session, the mediator will ask if there is anything the party has said that can be shared with the other

Stage 3 – Exploration (3)

Continuing Private Sessions
As exchanges continue, the parties may start to sense that compromise and concession could work
At this point, the private sessions move gradually from exploration to negotiation
The mediator will avoid detail. Seeking blame is not the game.
The devil is NOT in the detail.
The mediator will continually be re-framing statements and summarising what has been said to confirm that his understanding is correct.

Stage 4 – Negotiation (1)

Continuing Private Sessions
From negotiation – and compromise – flows the possibility of resolution.
The mediator will work to establish where the parties’ interests overlap and especially where their needs are the same.
Where specifically permitted, such overlapping interests and needs may be shared with the other party.
Around this time, the mediator may talk about what options might be available to a party if mediation fails; that is to say –
What would arbitration or litigation cost?
How confident might you be?
Do you believe that this result would be better or worse than mutual agreement?
How do you think the other party is feeling?

Stage 4 – Negotiation (2)

Continuing Private Sessions
Proposals: at this stage, the parties may be looking at making small concessions, concessions that may be disclosed to the other party
The mediator will make no suggestions or proposals.
He will be asking questions and aiming each party towards making their own proposals: the solution comes from them, not the mediator.

Stage 4 – Negotiation (3)

Continuing Private Sessions
Once some common ground has been reached and that common ground identified by each party, settlement looks more likely.
The mediator will make no statements but may ask –
What is your worst position from today?
What is your best position from today?
What would you do if settlement not reached?

Stage 4 – Negotiation (4)

Continuing Private Sessions
When settlement appears to be coming close, the mediator may call parties back into full session and summarise where the issue sits
It is at this point, that the parties may see that with concessions or proposals from the other, resolution may be possible.

Stage 5 – Closing

Agreement – If agreement is reached, a formal agreement will be prepared by lawyers (if present) or on a standard form by the parties under the guidance of the mediator.

Closing – Once the settlement agreement has been signed it is binding on the Parties in the same way that any other agreement would be.

This is an outline of the basic procedure taken from a PPT file. If you would like the original in PPT format, please let me know by email to johnclayden@johnclayden.com