What are the steps in mediation?
Posted on August 21, 2017 by Jeremy Frost
Simply put, a mediator tries to find an acceptable position in a dispute where the parties can meet for an agreement.
But how does a mediator set about this?
The first step is preparation. The mediator will usually talk with lawyers and clients before asking for a short document setting out what issues will be raised. I would emphasise that the document (or documents if the sides seem unlikely to agree one between them) is expected to provide the briefest of outlines of the dispute. The point of the process is to try and leave the detail and litigation process behind and instead focus on the settlement.
At this time, the fee for the mediator will also be established. In most cases both sides will pay the same and in advance - and finally how and, if it will be a day of meetings, where and when the mediation will take place.
These are vital so each party knows what to expect.
The classic model of mediation is a daily session which I will deal with below. This is not the only way that mediations are conducted. In particular, the County Court system is trialing a free telephone process in some cases. Here the daily approach is the model, except the parties are on the end of a phone rather than in a meeting suite.
The classic model involves three rooms. One each for the parties and a further room for both parties to meet together. Ideally the two individual party rooms will be identical in shape and size and equal-distant from the main meeting room. Refreshments will be provided in the individual parties’ rooms.
The first meeting would take place in the middle room - this is ‘neutral’ territory where the mediator sets out why all of them are there and both sides get a limited amount of time (usually five minutes) to explain their position and anything factual and relevant to the dispute that they wish to raise. The limiting of the time is specifically designed to avoid an emotional beginning.
Each side will then retire to their own rooms and the mediator will attend on each to start the process of examining the details of the dispute and what a solution might look like. Ideally the meetings with the parties will take the same length of time, at least initially. It is important that at all stages the Parties do not feel that the mediator is either taking against them or being swayed in their direction.
During the mediation, the mediator will go back and forth between the rooms, establishing the different positions and trying to help the parties determine mutually acceptable ground where offers might be made and accepted. Classically and logically the mediator will go to the claimant first, although this is not predetermined and the mediator will confirm who they will meet first in the preliminary session.
The mediator tries to spend equal amounts of time with each party, but this will be dictated by the situation as it unfolds and flexibility is always essential.
Sometimes parties refuse to meet at the beginning, so you will have to forego the first meeting and go straight into the rooms. Mediation is all about flexibility.
If there is an acceptable position available and discovered, then an agreement can be drafted and signed.