Try Mediation - a therapy that works

Mediation is a procedure regularly used by individuals and businesses to resolve their disputes and avoid slow and costly litigation and we are increasingly asked to explain how the process works.

Once appointed a mediator’s task is to get the parties to negotiate and to facilitate this until an agreement is achieved.  It is not an adversarial contest and it is for the parties to agree upon the outcome, not the mediator.

A mediation agreement will be drawn up to set out the parties' agreement to participate in mediation and agreement to follow the rules of the mediation, such as confidentiality and for it to be without prejudice to any trial that may follow if the mediation fails. This is a key document and must be signed by both parties before the mediation begins.

In preparing for the mediation hearing, you should consider what documents will be needed ahead of the hearing to inform the mediator of the matters in dispute. This should be restricted to relevant documents only;  not all documents.

It will save time if you prepare and give the other party a position statement setting out the main points that are in dispute.

You will need to consider:

·         what documents you wish to rely on

·         any research that may be relevant

·         who you will wish to attend the meeting with you

·         your risks and the margin between your most and least acceptable outcomes.

Before the hearing the mediator will want to try and understand what each party perceives as the best outcome.

On the day of the hearing, make sure you are prepared and open to reconcile differences of  position and above all to avoid entrenched positioning.

At the hearing, the mediator will set out the issues in dispute and remedies the parties are seeking as set out in their position statements.  This will make clear where the points of difference lie and efforts can then be made to narrow and bridge differences.

The process should result in the parties being able to engage easily in meaningful dialogue and reach a settlement.

A safe place to talk

The meeting usually begins with a joint meeting between the parties and the mediator. You and any representatives for parties will be invited to make an opening statement.

The mediator will give each side an opportunity to set out their case and understand the other party’s case. The mediator will also use the joint meeting to explore further some of the issues and ensure both sides genuinely understand their relative positions.

The mediator may set some ground rules to avoid conflict and to allow each party to speak in turn in an orderly way.

The mediator may suggest various ways to enable the parties to prioritise issues and focus on their essential outcomes rather than less important ones.

Particular elements may emerge as important and be previously unknown to the other party. Or a party may reveal something that was not fully explained in their position statement, and it may be a matter on which compromise can be achieved.

Mediation can achieve commercial and practical solutions that are not available from a court decision. Courts inevitably decide only upon the issues put in front of the judge to consider.

You can focus on achieving a solution that the other party will agree.  The mediator creates the environment and conditions for this to happen and for open minded parties to create solutions to their issues.

At the end of the hearing, if agreement has been reached then the terms of a settlement will need to be written down. This is not part of the role of the mediator, and you will need to ensure that any agreement is legal and effective.

Even if the mediation does not achieve settlement at the hearing a second attempt can be made and at worst the issues to be referred to the court may be more limited if partial agreement can been reached.