WHAT IS MEDIATION?
A form of alternative dispute resolution ("ADR")
A process whereby an impartial third party (the mediator) assists the parties in resolving conflict
A flexible process
A process that encourages communication
An opportunity for parties to collaboratively control an outcome and consider alternatives that would not be considered or factored in court proceedings
A confidential process
Without prejudice (the discussions in a mediation cannot be referred to in court proceedings)
WHAT MEDIATION IS NOT
A tick box exercise: come with a genuine intention to settle
A judicial process: the mediator is not a judge and the venue is not a courtroom. The parties are in control of the outcome and make their own decisions
Public: as above, mediations are confidential and without prejudice
THE MEDIATION PROCESS
A TYPICAL MEDIATION OPERATES IN THE FOLLOWING WAY:
1. Joint opening session:
The mediator will make an opening statement, setting out the ground rules, the procedure for the day and the key points to be aware of. The parties will have an opportunity to put forward their respective positions.
Each case is different. It is sometimes the case that an initial joint session is not appropriate. This could be for several reasons. The mediator will ask the parties their initial preference, and if a joint session cannot be agreed at the start, it may be agreed during the process.
2. Private sessions between the respective parties and the mediator:
The mediator will progress the mediation by meeting with each party individually and discussing the current position, exploring the issues in dispute, and working out the needs of each party. The majority of the session will operate in this way, with the mediator moving from room to room.
3. Closing joint session:
If the parties have reached a settlement, then they may wish to engage in a closing meeting to finalise the terms of the agreement reached. This may be the parties themselves or involving the representatives. As with opening joint sessions, whether a closing session becomes joint will be dependent on how appropriate it is in the circumstances. A closing session might also be appropriate to recap the issues remaining in dispute if for any reason a settlement was not possible on the day, but it likely in the future.