Who's who in a mediation?

Contributed by Margaret Halsmith and current to 1 September 2005

The following provides an overview of the usual participants in a mediation process.

PARTICIPANTS

As the mediation ‘belongs’ to the participants they have a significant and active role to play before, during and after each session of the mediation.

Before commencing mediation it may be important to attempt to negotiate with other participants involved in the dispute. Participants are best prepared for mediation when they are ready to move forward to agreements, rather than to re-visit past issues of the dispute.

Although mediation is ‘interests’ based, it is important for participants to obtain information and advice about their rights prior to mediation commencing and/or during and/or after the mediation.

Mediation works well when participants are committed to finding a mutual solution. One way to decide whether to commit to mediation is to explore other processes of dispute resolution and the likely timelines, costs and outcomes.

During the mediation participants will be assisted to be assertive.

Following the mediation participants may be obliged to or may choose to register the agreement, and/or to return to mediation if an issue relating to the agreement cannot be resolved by direct negotiation among the participants. It is usual that a mediated agreement includes a commitment to returning to mediation if a related dispute arises, so that all participants know that they will first have an opportunity to resolve any future disputes cooperatively, before adversarial methods are considered.

MEDIATORS

Disputes are complex and unique. Much of a mediator’s work is in the preparation for the mediation. This includes:

• diagnosing the causes of the conflict;

• analysing the current conflict; and

• considering the suitability of mediation.

Throughout the mediation the mediator will manage the process by providing ample opportunity for each participant to:

• focus on the future;

• listen to each other;

• explain their point of view;

• suggest possible options for agreement;

• negotiate; and

• make considered decisions

Throughout the mediation the mediator will continue to assess the suitability of the situation for mediation. Following some mediations, mediators draft ‘heads of agreement’ if parties are not represented by lawyers. When a mediation is completed most mediators destroy their notes as part of the confidentiality agreement reached at the commencement of the mediation.

PROFESSIONAL ADVISORS INCLUDING LAWYERS, ACCOUNTANTS, PSYCHOLOGISTS

In some mediation settings, including neighbourhood mediations, participants are rarely accompanied by lawyers. In others, including commercial mediations, parties are usually represented by lawyers. When lawyers are involved in a mediation, much of their role is in the preparation stage, as it is for litigation.

It is often lawyers who, after consulting with the other participants’ lawyers, may refer clients to mediation. When mediation has been agreed to and assessed as suitable by the participants and the mediator, lawyers will clarify and explain the ‘Agreement to Mediate’ to their clients.

The ‘Agreement to Mediate’ is often a formal document which describes the process of mediation and the roles and obligations of everyone who attends. By signing it, parties, professional advisors, other support people and the mediator(s) are making a commitment to interact in a way which is conducive to a mediated outcome being reached, if appropriate. In some settings, the Agreement to Mediate is a verbal one. Professional advisors will explain the process, the roles of all involved, and the philosophy of mediation. In particular, ethical issues, especially regarding confidentiality and voluntariness, should be explained and discussed. A written Agreement to Mediate confirms this.

When the mediation requires it, professional advisors’ roles include identifying and arranging for the exchange of documents before the mediation commences.

Although a lawyer is rarely an advocate in a mediation setting, there is still the need to take instructions and to provide advice regarding an appropriate range of outcomes. Lawyers can assist participants to prepare for a mediation by discussing their client’s opening statement in terms of legal as well as personal concerns.

The role of lawyers and other professional advisors during the mediation varies considerably from mediation to mediation. Some accompany clients to mediation; others arrange to be available during mediation and between mediation sessions, while others assist after an agreement is reached by drafting and filing documents at court. Whether present or not, the role of the lawyer continues to include:

• screening for ongoing appropriateness;

• advising and taking instructions;

• encouraging the client to ‘air’ concerns;

• encouraging the client to generate his/her own options for settlement;

• supporting the mediation process and the mediator; and

• drafting interim agreements.

Lawyers and other professional advisors who are present during the mediation also have the role of calling a break whenever they need to speak with their client.

Following a successful mediation, the lawyer may draft formal documentation recording the agreement reached and addressing any remaining legal issues.