What to expect in a mediation

Someone soon will propose that one of your clients’ disputes might be mediated. What does this mean? What will be expected of you and your client?

You may not have had to consider these questions before. Fortunately, there are no rules of procedure to be learned – only common sense to be observed.

Mediation is a negotiation assisted by a trained, neutral, third party. It works surprisingly often – statistically in excess of 80 per cent of cases. This applies even when the relationship between the parties is acrimonious. All that is required is that the parties are prepared to talk.

Mediation is unlikely to be satisfactory if either of the parties is coerced into it against his or her will.

Mediation applies in many situations. It can assist with local community disputes. It is helpful in the matrimonial and family fields. It can even contribute to the planning process and environmental disputes. Peer mediation can be effective in minimising bullying at school. In the context of this article, I am dealing with commercial and reparation claims.

Pre-mediation

The suggestion of mediation may trigger in you or your client the question: “Have we explored the negotiation option adequately?” This may result in a successful round of discussions between the advisers. It may be, however that the relationship amongst the parties is such that they can barely contemplate being in the same room together. If this is so, but they still would like to have a chance of getting through the problem without resort to the court or continuation of the court battle (for many mediations take place while the matter is still in the court process), the mediator can suggest ways in which a meeting can be facilitated. He will be prepared to become involved in pre-mediation meetings to this end.

Willingness to mediate is a sign of strength

You may be concerned that such meetings and the mediation itself may prejudice your client’s position. It may also be thought to display weakness. Experience shows that submitting to mediation displays neither weakness nor strength. It can easily be seen that the party who perceives him or herself to be stronger will have little to fear from a continuation or resumption of negotiations.

Mediation, like negotiation, requires thorough preparation. Solicitors will wish to be as well prepared for a mediation as for any major negotiation meeting.

Leave it in the hands of the mediator

The mediator or the mediation organiser will take it upon him or herself to arrange the date and venue for the mediation in agreement with the parties and their solicitors. (Solicitors are normally involved in the mediation of disputes which may be bound for court.) This service is likely to be included in the overall mediation fee. The actual costs of the venue will be charged to the parties who will, in absence of agreement to the contrary, bear the costs of the mediation equally.

The mediator may well have been in touch with the parties and/or their solicitors (as they wish) in advance of the mediation to clear up any points of information they may require.

Without prejudice

The pre-mediation communications and the mediation itself are entirely “without prejudice”. The mediator will be careful not to get involved with the merits of the case without first having in place an agreement confirming this and covering confidentiality and non-disclosure. Accordingly, no information that arrives with the mediator at any time will be passed on to the other party without the first party’s clear and explicit authority.

What to expect on the day

The mediator will welcome the parties at the venue and will invite them to join him or her for an explanation of how the day will be handled and to provide some simple ground rules. The parties will be asked if they are content with what is proposed. They should feel that they have a material degree of control of them. It is, after all, their dispute.

After this explanation, the parties will normally be asked to give a summary of their respective cases. This will be done with all parties present and the parties will be asked to allow the other to speak without interruption. The summary is sometimes given by the parties themselves but more usually by their solicitors. The mediator may ask the parties if they have anything to add to what has been said on their behalf. This period gives the parties the chance to hear directly from the other side (whom they may not have met in person for many months) their personal “take” on the situation.

No absolutes, flexibility is critical

You will notice that I use the words “normally” and “usually”. The reason for this is that in mediation, there tend not to be absolutes. The mediator is there to help the parties come to an accommodation with each other that meets their interests. In doing this, flexibility and creativity are required. If the parties or their advisers have ideas which appear to be positive and are agreeable to both parties, it is more than likely that the mediator will give these ideas a chance to be considered.

The mediator may keep the parties together to discuss solutions face-to-face but he would normally suggest that he speaks to the parties separately in different rooms. He will then perform “shuttle diplomacy”. His job will be to find out as much as he can from each party as to what their true negotiating positions are. He will also test the reality of the stances being adopted by the parties and ask what the options for them are if the dispute is not settled in the mediation. A crucial part of this is that anything communicated by each party to the mediator in private is totally confidential. The mediator will on no account pass on any information provided by the other party without express and clear authority by that party to do so. Without total trust on this point it is unlikely that the mediation will be successful.

It will be unhelpful to the process for solicitors or their clients to adopt a confrontational approach to this process. Mediation does not set out to find fault, assign blame or punish anyone. Mediation is not capable of changing anyone’s personality or values.

Not a soft option

The private meetings can each last as much as an hour. For the party not being met by the mediator, the waiting can be tiring and worrying. All that can be said is that “forewarned is forearmed”. Nothing should be read into the length of time being spent by the mediator with each party. Mediation is not an easy process for the parties – or, indeed the mediator. It is a hard process in difficult disputes and it tends to be a long day. Considerable nervous energy is required to understand that settlement will involve moving one’s position. Re-evaluating one’s stance in the face of, sometimes quite surprising, new information is demanding.

At any stage in the process, the parties are free to walk away. No pressure will be brought to bear on the parties to stay, although the mediator will certainly encourage them to do so.

When and if the mediator feels that the parties are close enough to each other to conclude an agreement, he or she will call the parties together to check if this is, indeed so. You will notice that at no stage will the mediator be judgemental. It is not for him or her to make any decision or to give any advice. The exercise is to enable the parties to come to their agreement.

If the parties do, indeed, agree, they and their solicitors will put together an agreement documenting this. Once that agreement is signed, then and then only is the mediation binding, as the agreement is just that – an enforceable document.

Mediation is intended to be a process that assists with understanding. Often this leads to reconciliation and a continuation of relationships – personal and business – that would have been unthinkable following a court case. The process is not demanding in procedural terms. It is demanding in real terms to those who participate with a positive approach and is, invariably, rewarding and satisfying to all who are involved.

David Semple is an independent mediator