The Mediation Process
The parties must enter into an agreement to mediate and must sign the mediator's conditions of engagement.
The aim of the mediator is to assist the parties to reach a solution, not for the mediator to impose one. If agreement cannot be reached the mediation normally comes to an end.
Mediation is a "facilitated negotiation". The parties should prepare for mediation in exactly the same way that they would prepare for a negotiation.
The parties are rarely familiar with the mediation process and it is helpful if the mediator issues a paper outlining the procedure in advance of the mediation.
The mediator should ask the parties to:
- Send him a short written statement outlining how they consider the dispute has arisen; their view of the dispute and what steps have been taken in attempting to resolve the dispute.
- Define for themselves the subject matter of the mediation.
- Determine their own objectives, which will include a maximum or minimum requirement.
- List the various facts that are helpful to their case and those likely to be raised by the other party.
- List the issues upon which the parties disagree.
- Each party should assess their own position in respect of each issue and determine the tactics for each.
- Consider the needs of the other party. There is little point in pursuing something that the other party is unable to provide.
- Consider their strategies for the mediation.
The mediator facilitates agreement between the parties by suggestion, advice, persuasion, cajoling or any other means available to bring the parties together.
The mediator, having no power to impose a solution, can refuse to start a mediation if he thinks the substance of the dispute is unsuitable for mediation. He can refuse to continue when he believes that the parties cannot reach a solution or are not seriously trying to reach a settlement.
The mediator can be removed by the parties at any time if they are dissatisfied with the way in which he is conducting the mediation.
The mediator must endeavour to engender a "will to settle".
The Mediator's role
The Mediator's function is to act as a catalyst to enable the parties to resolve the difficulties for themselves.
Parties may not be able to reach agreement by themselves for a number of reasons:-
- One or both of the parties have reached an entrenched position from which it is difficult or impossible to retreat.
- The demands of one party are so excessive that no accommodation or compromise appears possible.
- The demands a one party may be impossible for the other party to agree. It is for the mediator to find some other solution that is acceptable.
- Personality clashes may have developed between the parties that make it hard for them to communicate on any level of understanding.
- One party has taken a defensive position because of potential third-party liabilities.
- Resolution of the problem is difficult because of departmental policies.
- There may be cultural problems, for example the fear of "losing face".
Techniques for the mediator
Establish exactly what the dispute is about: establish the reasons behind it; what caused the inability to settle and what the parties actually require (this may not be what they think they require).
Clarify the positions of the parties and translate them into terms that are clearly understood by all.
Establish what is important and what is not to each of the parties; the priorities of these various requirements and establish what is expendable.
Establish areas of overlap: help each side to a position of compromise.
Extend discussions into matters or proposals not previously considered.
Make suggestions to each party concerning alternative solutions.
Exert pressure for a solution to be reached.
Seek a "face-saving" formula where appropriate.
To be effective the mediator must gain and retain the confidence and respect of the parties.
Trust has to be established from the outset to enable the parties to deal frankly and openly with the mediator. A successful mediation requires the parties to reveal to the mediator their positions and the concessions that they are prepared to make.
The mediator should establish this trust by:-
- Explaining his role in the process.
- Demonstrating that he has the ability to listen to the parties and learn from them.
- Showing both impartiality and objectivity.
- Not making value judgements.
- Being firm but flexible when handling the meetings and ensuring that the discussions are confined to what is relevant.
- Not showing hostility to any party's views or positions.
- Remembering that he is not a judge and is not able to decide between the parties cases.
Be objective: support both sides, even if privately you prefer one point of view.
Be supportive: use caring language. Provide a non-threatening learning environment, where people will feel safe to open up.
Do not be judgemental: actively discourage judgements as to who was right and who was wrong. Do not ask "Why did you?" Ask "What happened?" And "How did you feel?"
Steer process, not content. Use astute questioning. Encourage suggestions from the Parties. Resist advising. If your suggestions are really needed, offer as options not directives.
Win/Win: work towards wins for both Parties. Turn opponents into problem solving partners.
Get agreement from both Parties about a basic willingness to solve the problem.
Let each Party say what the problem is for them. Check back that each Party has actually understood the position of the other Party.
Guide conversations towards a joint problem-solving approach and away from personal attack.
Encourage Parties to look for answers where everybody gets what they need.
Reframe negative statements into a neutral description of a legitimate present concern.
The mediator introduces himself and ensures that all present are introduced to each other.
The mediator makes his opening statement.
The parties make a short statement describing their views of the dispute.
The mediator meets with each party separately in turn at a "caucus".
The mediator discusses with each party their respective views of the dispute, trying to find out what is of real importance to each and to identify any areas of possible resolution.
The mediator will move to and fro between the parties trying out different approaches and attempting to narrow the areas of disagreement in order to bring the parties closer together.
When he believes that agreement can be reached, or for some other reason it would be helpful, the mediator will bring the parties together again in joint session.
Once a solution has been reach the mediator will see that it is recorded in writing. If a lawyer is present he should be invited to draft a formal agreement.
© James Torr 2004
TYPICAL OPENING STATEMENT BY MEDIATOR
I hope you are comfortable and are ready to begin?
My name is [------] and, as you are aware, I have been appointed by you as the parties to act as Mediator in the dispute between you.
I think that congratulations are in order as, by agreeing to this mediation, you have already reached the first stage on the road to an agreement.
Before we begin perhaps it would be helpful to you if I explain a little of my background.
I am . . . . . . . . .
I am actively involved in dispute resolution in a number of capacities: as an Adjudicator and Mediator. Mediation is increasingly becoming the preferred method of dispute resolution and over 80% of mediations have resulted in a settlement. I see no reason why we should not achieve a successful result today.
Now before we proceed it would be helpful to me if you would each introduce yourself by telling me who you are and what your role is today. After introductions. Thank you.
Before we begin will you please confirm that you have the necessary authority to reach a settlement today? I will record that you confirmed your authority to reach a settlement.
Probably neither/none of you has attended a mediation before and so I will tell you what we are going to do today and explain my role as mediator. These points are important and to ensure that I cover every one I shall be referring to written notes, from time to time.
When people are unable to reach a solution to a problem themselves they are obliged to seek outside help. This help can either be by resorting to legal processes - arbitration or litigation - or by seeking the assistance of an independent person, a neutral person, to act as a go-between to guide them to an acceptable solution. That is my function.
I have no power to impose upon you my solution, like an arbitrator or judge. I am here to act as a catalyst to enable you to explore the means by which agreement may be reached. It is to be your solution, not mine.
You are free to leave at any time that you feel unhappy with the way things are going and you will not commit yourself in any way unless you wish to do so.
These proceedings, being an attempt to negotiate a settlement of your dispute, are as the lawyers say entirely "without prejudice". That means that anything that is said today cannot be used as evidence in any subsequent proceedings that may occur, and therefore nothing that is said will affect your legal positions in any way should we not be able to reach an agreement. Reference can not be made in any subsequent proceedings to what is said during this mediation. Any rights with which you came into this mediation will still be with you when you leave.
I have not met either of you before [OR: I do of course know X in a professional capacity.] and I have no personal interest in any settlement that we may reach. I give you my solemn undertaking that anything that you tell me in these proceedings I shall treat in complete confidence and I will not disclose anything that you tell me to any other party without your express and explicit approval.
I will shortly ask each of you to give me a brief outline of the dispute as you see it. I would ask you not to interrupt each other, as there will be plenty of time for you to give your alternative views later.
After your addresses I will speak to each of you privately in what, in mediation jargon, we call a caucus. I shall go back and forth between you, classifying points and exploring possibilities, until I think that we have the basis for an agreement.
I must stress that it is essential that in these discussions you speak frankly and openly with me. Please remember that our conversations will be completely confidential.
At the end of the mediation I will tear up my notes in front of you and I will not voluntarily take part in any future action that may occur between you on the matters that we shall now be considering.
Perhaps I should point out that it is of no importance to whom I decide to speak first and it is also of no significance how long I spend with each of you. That will depend upon how the matter unfolds.
I would also point out that if I nod at you that does not mean that I agree with the point being made but merely that I understand what you are telling me.
It is my normal practice that when I think we are in a position to reach an agreement I shall call you together again so that we can summarise the points of agreement reached and decide how to finalise it.
When an agreement is reached I shall, if you wish, draft the agreement for you both to sign before ending the mediation.
Y in accordance with the standard mediator’s procedure I invite you, as the Claimant, to give your views first.
Now Z, as the Respondent will you please give me your views.
Thank you ladies/gentlemen. I will now hold my first caucus with Y, the Claimant.
Z will you please return to your room. I shall hold my first caucus with you in a few minutes time.
© James Torr 2004 (with some minor editing)