The Mediation Process

Contributed by Margaret Halsmith and current to 1 September 2005

The following provides a brief description of the mediation process, the roles of participants, mediators and lawyers. Note that the suitability of mediation is assessed continuously by all involved. As mediation is voluntary, the participants or the mediator can withdraw at any time if they believe the mediation is no longer suitable. There is no need to give a reason for withdrawing, other than that the mediation no longer seems suitable.

STEP 1: IN-TAKE

In separate sessions and/or in a preliminary conference, an assessment is made by the mediator, based on an interview with each participant and their advisors and/or support people, as to the suitability of mediation. This is an assessment of whether a level playing-field can be established so that the legal issues and personal issues can be resolved fairly. Based on an understanding of the causes of the dispute, participants’ concerns and the power dynamics of the relationships, the mediator facilitates a dialogue in which each participant is most likely to be able to listen to and speak to the other respectfully. Some of the many ways in which this is accomplished include:

• Discussion is limited to only those issues which all participants agree to discuss;

• Guidelines for discussion are provided; and

• Breaks are held during the joint sessions to enable all parties to tell the mediator in strict confidence whether the mediation process appears fair.

During the in-take session, confidentiality is discussed. As mentioned above, discussion which takes place in a mediation cannot generally be used in a court setting. That is, the mediation takes place on a ‘without prejudice’ basis: it is confidential ‘within the limits of the law’.

Preliminary conference

In addition to, or instead of, separate in-take sessions, a preliminary conference of parties and their professional advisors may be held for similar purposes.

STEP 2: JOINT SESSIONS

Following the separate sessions and/or preliminary conference, participants usually meet face-to-face in a series of meetings in which the participants decide what issues they are willing to discuss and to attempt to resolve. Sometimes all or part of a mediation is conducted by telephone, by video or on-line. The mediator manages this process.

One of the first points on which agreement is sought to be reached concerns confidentiality. In some settings, complete confidentiality is a requirement of the process. In others, participants agree on which aspects of the mediation will remain confidential and which aspects can be discussed with other people.

Early in the joint sessions the mediator provides the opportunity for each participant to explain their point of view of the dispute and also their goals for the future in relation to the other participants.

Later in the joint sessions, the participants are encouraged to develop creative solutions which meet the interests of all concerned and which comply with the law. A mediated agreement is one that should appear better to each of the participants than an outcome that could have been obtained in another way. For example, if a commercial dispute is resolved in a court, the main outcome is likely be a determination of a financial settlement to be paid by one party to another. By contrast, a mediated outcome is likely to include, in addition to a financial agreement reached by the parties, extra value: such as perhaps a payment plan at a pace to suit the payer; and/or part payment in kind, perhaps by provision of a service, such as marketing a product.

As mentioned above, sometimes parties break again into separate sessions to have confidential discussions with the mediator(s), their lawyers and/or their support person, or just to have a break and gather their thoughts.

STEP 3: AGREEMENT

If an agreement is reached, as it is in approximately 90 per cent of mediations, the agreement may be written down and become enforceable, or may be voluntarily complied with, depending on the setting in which the mediation took place and on the participants’ preferences. Refer to ‘Legal Issues and ADR’ above.

Mediated agreements commonly include:

• apologies and acknowledgement;

• agreements regarding future behaviour between the parties;

• terms regarding financial settlement;

• tasks to be done by participants; and/or

• interim agreements and schedules for review.

When mediation results in an agreement on all of the issues under discussion, there are usually some steps to take to formalise the agreements. Refer to the section on roles of participants and lawyers further below.

When a partial agreement (or no agreement) is reached, participants can decide how to resolve the remaining issues. Some choose to continue to negotiate, either directly or through lawyers, some choose to go to court; some choose arbitration or a tribunal and some choose to abandon pursuit of the issue. Sometimes participants go to the media.