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What Happens in the Mediation Process?

Mediation is based on principles of problem-solving that focus on the needs and interests of the participants; fairness; privacy; self-determination and the best interest of all parties. These standards are intended to assist and guide public, private, voluntary, and mandatory mediation. The manner of implementation and mediator adherence to these standards may be influenced by local law or court rule. 

The mediation process involves:

• All parties listening to each other’s point of view without interrupting;
• Identifying the issues in the dispute;
• Setting an agenda to discuss the issues;
• Sharing relevant information;
• Exploring options and testing possible solutions;
• Negotiating a written agreement.

Even though mediation is not as formal as going to court, the process is very powerful and more structured than many people realise. It involves far more than a casual discussion between the mediator and the disputants with the hope they will drop their adversarial approach and start working together!

The mediator in a sense plays the role of an experienced and skillful ship’s captain, navigating the mutinying crew through the rough patches through calmer waters to a safe harbour where they can disembark safely and successfully. He skillfully draws on specialised training to ensure all onboard are committed to the journey, play by the rules and code of conduct, have time out when necessary and are free to jump ship should they so choose at any point. Unlike a judge or an arbitrator, the mediator does not take sides or make decisions. His role is to empower, direct, manoeuvre and focus discussions, assist parties in evaluating their goals and options; and facilitate the parties’ creation of their own satisfactory solution.

At or before Mediation, the parties and the Mediator sign an 'Agreement to Mediate.' The agreement is a commitment from the parties to attempt resolving the dispute, but the parties are not obligated to come to an agreement. As it is a voluntary process, the agreement allows the parties to terminate the mediation at any time and sets out other matters including confidentiality and the "without prejudice" nature of the process.

There are a number of stages in a typical mediation with the objective of reaching a mutually beneficial outcome for all parties:

Stage 1: Mediator's Opening Statement. When the parties are comfortably seated, the mediator introduces everyone, explains the objectives and ground rules, clarifies the process and aspects of the mediation agreement, encourages each side to work cooperatively toward a settlement and proposes an outline for the day.

Stage 2: Disputants' Opening Statements. Each party is invited to ‘tell their story’ in their own words, providing a synopsis of what the dispute is about, how they have been affected by it, and share some general ideas about ways to resolve it. The mediator then clarifies and frames the issues in terms acceptable to the parties. While each party is telling their story, the other party must not interrupt.

Stage 3: Agenda Formulation. The mediator, with the assistance of the parties then proposes an agenda for joint discussion.

Stage 4: Joint Discussion (Exploration). Referring the agenda, the mediator encourages the parties to talk directly to each other. Using questions, the mediator shifts the focus from positions to underlying interests and uses techniques such as reframing to detoxify inflammatory statements and maintain focus.

Stage 5: Private Caucuses. These are optional confidential ‘time out’ sessions and an opportunity for each party to meet privately with the mediator (usually in a nearby breakout room) to discuss the strengths and weaknesses of their case and raise new ideas for settlement. The mediator may caucus with each side just once, or several times, as appropriate. He may ask the parties what their best and worst case scenarios are, discuss any previous settlement negotiations or settlement options and focus direction on moving forward to a resolution.

Stage 6: Option Generation. The parties brainstorm, list and evaluate options for satisfying as many interests as possible in order to reach a settlement.

Stage 7: Joint Negotiation. After caucus sessions, the mediator may bring the parties back together to negotiate directly.

Stage 8: Agreement Writing & Closure. If an agreement or partial agreement has been reached by the parties, the mediator may summarise its main provisions in writing as the parties listen. The mediator may ask each side to sign the written summary of agreement or suggest they take it to lawyers for review. If the parties agree, they can write up and sign a legally binding contract. If no agreement was reached, the mediator will review whatever progress has been made and advise everyone of their options, such as meeting again later, going to arbitration, or going to court.

What happens after mediation?

Final Outcome – whilst the majority of mediations reach settlement and result in a formal written agreement between the parties, at other times, the mediation may be:

1. Suspended – the parties reach a point where they need to obtain more information or seek assistance before they can settle. They agree to resume the mediation process at a future date.
2. Ended by a party – all parties participate voluntarily so are free to withdraw from the mediation at any point.
3. Terminated by the mediator – if the mediator feels that a party is not cooperating and is hindering the process or believes no further progress is likely, they may terminate the mediation.
4. Settled with a non-binding recommendation – if the parties are unable to reach an agreement together, they may agree with the mediator that he will provide a non-binding written recommendation on reasonable settlement terms. The parties should not participate in the mediation however with an expectation that this will be the outcome.

If the dispute had already commenced in court but the parties are able to resolve it, they usually instruct their lawyers to terminate court proceedings. Usually the court makes no orders about legal costs. However, if the parties were involved in a court-ordered mediation but the mediation does not result in settlement of the dispute, the mediator reports this back to the court so proceedings can continue.

If you have further questions, or require more information and advice on how we may be of assistance in your particular situation, we invite you to contact us directly.  You may also benefit by subscribing to our free bi-monthly newsletter which provides tips and advice on topics such as communication focus, collaboration, mediation, negotiation strategies, questions and answers from subscribers and clients, recommended reading, case studies and website updates.  Full of practical "how to" tools and techniques for communicating more effectively and achieving satisfying outcomes.  Please visit our downloads page for a free sample.