Mediation is a confidential and flexible process that can be adapted to suit the parties, the circumstances and the nature of the dispute. In general the process can be described as follows:
Prior to the conduct of the mediation session there will usually be a preliminary conference with each of the parties involved (either in person or by telephone). The purpose of this is to:
- * Provide information about the mediation process;
- * Obtain information about the dispute;
- * Discuss any concerns each party may have;
- * Answer any questions the parties may have;
- * Discuss the mediation agreement and provide a copy to each of the parties (and their lawyers, if appropriate); and
- * Discuss date, time and suitable venue for the mediation.
The mediator will greet the parties and obtain their signatures on the mediation agreement (if not already done so).
The actual mediation process can be considered as having two distinct purposes:
- Understanding and exploration of the issues involved
- Problems solving and resolution.
These are further divided into further distinct components:
Understanding and exploration
This part of the mediation session looks to the past and explores how and why the dispute originated.
Joint Session (with all parties together).
- Mediator’s opening statement to outline the process and the rules of conduct of the mediation session;
- Parties’ brief statements about what brought each of them to mediation and the issues they want to cover;
- Mediator reflects and summarises each of the parties statements and the issues they want to cover;
- Mediator and parties decide on the agenda. This ensures that all required issues are covered;
- Detailed exploration and discussion of the issues associated with the dispute.
Private Session (are confidential and held with each party individually). The purpose of these are:
- To check how each party feels the mediation is going;
- Discuss anything else that may be relevant but the parties don’t want to reveal to the other;
- Consider each party’s alternatives if agreement is not reached at mediation;
- Reality testing of those alternatives;
- Consider options for resolution of the dispute;
- Reality testing of those options.
Private sessions can be held any number of times and at the request of the parties.
Problem solving and resolution
This part of the mediation process is forward looking and its purpose is the resolution of the dispute. It involves:
- Joint negotiations – all parties are in the same room negotiating the terms required for the resolution of the dispute;
- More private sessions may be conducted if necessary;
- Agreement & closure. If agreement is reached the terms are recorded. If lawyers are present they would be entrusted to prepare a settlement agreement based on the agreed terms. If lawyers are not present the detailed terms may be forwarded to them for preparation of the settlement agreement. If lawyers were not involved then the terms recorded can become the terms of the settlement agreement between the parties.
- The mediation is closed and, if follow up is required, another meeting date may be arranged.