What is Mediation?

“Mediation is a voluntary process for resolving disputes by mutual agreement… Any settlement arising at mediation will be one which the participants own, and have created for themselves.”

The Mediation Handbook,
Judith Kelbie

Mediation is a facilitated voluntary process for resolving disputes.

During a Mediation the parties in a dispute, and possibly also their legal representatives, meet with a neutral third party – the Mediator – who will assist them in resolving the dispute.

Mediation is confidential and “without prejudice”.

Mediation does not involve the Mediator deciding how to resolve the dispute. Throughout the process the Mediator remains entirely neutral, and uses their skills, training and experience to help the parties find their own resolution.

Mediation is forward focussed and centres the interests of the parties – what is important to them. Mediation is not focussed on the events that led to the dispute (although they will necessarily be covered) or negotiating positions that the parties may have take prior to the Mediation.

The 5 Stages of Mediation

Mediations go through the following five stages…

1. Preparation (pre-mediation)

  • Initial Enquiry.
  • The Mediator makes contact with both parties (and any lawyers involved) and explains the process.
  • The Mediator can answer questions and address any concerns of reluctant parties.
  • The parties and Mediator agree the date and location for the Mediation (see Location and Logistics below).
  • Both parties, and any lawyers who will be present, sign the Mediation Agreement.
  • Both Parties can send the Mediator any preparatory information or papers that they feel will help the Mediator understand the dispute, and therefore be more informed in facilitating the parties find a resolution.

2. Opening

  • On the day of the Mediation the parties will arrive and be settled into their private rooms by the Mediator
  • Once both Parties are ready, they and the Mediator will move to the third room for an opening joint session.
  • The Mediator will start the joint session by running through a checklist to make absolutely sure that everyone understand the framework of the Mediation and is ready to engage in it.
  • Some simple ground-rules for the Mediation will be agreed.
  • Each party, and lawyer, will be asked to give an opening statement, briefly summarising the dispute from their perspective, and saying what they hope to achieve from the Mediation.
  • Following the opening statements, the parties may wish to engage in face-to-face dialog, or it may be that the parties prefer not to at this stage.
  • The parties will then move back into their private rooms and the Mediator will shuttle between them to conduct private sessions.

3. Exploration

  • A private session with one party is kept confidential, and is not discussed with the other party, allowing the party in the session to speak candidly with the Mediator.
  • The Mediator will spend roughly the same amount of time in private session with each party
  • The initial private session for each party is usually mainly used by the Mediator as a way of exploring and understanding the dispute and the interests of that party in resolving the dispute – finding out what’s important to them, and generating options.

4. Negotiation

  • After the initial private sessions, there will likely be multiple further private sessions with each party, and there may, or may not, be further joint sessions (if both parties agree to that).
  • The Mediator will help the parties to explore possible options, consider the perspective of the other party, focus on the future and reality-check their own positions.
  • It may be that a party in private session with the Mediator will want the Mediator to convey an offer or suggestion to the other party. Usually the Mediator will ask the party to write down the offer in their own words. The Mediator will then help the party to think through how that offer might be received by the other party, and will then take that written offer through to private session with the other party.
  • Offers and suggestions may shuttle back and forth between the parties, with the Mediator helping to find extra value for both parties during the process, based on their interests.

5. Conclusion

  • If, and when, the parties are able to find a mutually agreeable resolution one of the lawyers, or the parties, will draft a Settlement Agreement.
  • Once both parties are happy with the drafted Settlement Agreement, both parties will sign the agreement, making it legally binding. The Settlement Agreement will be copied and both parties will keep a copy.

Location and Logistics

Ordinarily one or both of the parties, or their lawyers, are responsible for arranging the booking of the physical space that the Mediation will take place in.

For an optimal in-person Mediation the booked space should have:

  1. Three separate rooms: two private, sound-proofed rooms – one for each party to conduct private sessions, and a third room for joint sessions. If this number of rooms is hard to achieve, then it is possible to conduct a Mediation with just two private rooms, or even just one private room, and a separate waiting space. The rooms should have seating and a table.
  2. The whole time of the Mediation available – preferably with additional time possible at the end in case the Mediation over-runs.
  3. Refreshments and toilet facilities, and ideally a comfortable temperature, natural lighting, and good air quality. Being physically comfortable helps everyone to think well and stay focussed on resolving the dispute.
  4. Any accessibility facilities required by any of the participants.

As an alternative to in-person Mediation, it is possible to conduct Mediation remotely with a Video Mediation.

Mediation Observations

As part of Mediators’ continuing professional development (CPD), it is common for Mediations to be silently observed by a second mediator. This is to facilitate the promotion of best-practise across the Mediation profession. The observer will not take part in the Mediation at all.

Any observers are bound by a confidentiality agreement in a similar way to the main mediator.