Prior to the mediation commencing, counsel will normally exchange issues papers with each other and with the mediator. This provides an important platform for the mediation.
The “first phase” of the mediation itself will normally include the parties (directly, or via their counsel) making personal statements which might detail the background, their view of the matters in dispute and what they hope to achieve from the mediation.
It is surprising how often that process, or more particularly each party “hearing” the other party and each party being “heard”, can lead to a mutual desire of the parties to seek a settlement to enable them to move on with their lives. Obviously, that is not always the case, and even where a mediation starts with the best intentions, there are often many “roadblocks” to overcome.
After the opening statements, the focus will move to the already identified, and sometimes newly identified (not previously identified), issues. The mediator’s role is to facilitate dialogue and assist the parties to express their interests and underlying issues, and to assist the opposing parties to “hear” the issues identified.
From there, the focus will move to generating and evaluating options to address the issues that are identified. That will often involve brainstorming by facilitating the development of creative ideas to address the roadblocks and assist parties to move beyond rigid demands (positions) to identify underlying needs/interests.
The mediator will work to limit one party dominating the process and provide equal opportunity for each party to be heard.
Normally, the mediation process will include sessions where the parties separate to enable them to separately consider their positions and, at times, for the mediator to meet with each party separately to explore sensitive issues or test proposals. Where the mediator does this, they will keep the detail of such discussions confidential, unless a party specifically authorises the sharing of information with the other party.
Often, later in the day, the parties will ask the mediator to present offer and counter offers to the opposing side.
Finally, assuming that agreement can be reached, the final step will be for the parties to document a settlement agreement. Often the mediator will also have a significant role in that process in that they will assist the process of clarifying the detail of the “settlement” and avoid an outcome whereby intransigence on a relatively minor issue (which might be seen as a matter of principle by one or both of the parties) could derail the settlement.
