How does it work?
Mediation involves a third party neutral taking the role of facilitator, evaluator or transformer in helping parties to reach a settlement to a dispute.
What is the process at a mediation?
There is no set procedure, but the typical stages in a mediation could be:
(a) a brief written summary of the dispute submitted in advance by the parties to the mediator;
(b) an initial joint meeting where the parties make an oral presentation;
(c) the mediator holds private meetings with the parties; this is often likened to shuttle diplomacy with a mediator shuttling back and forward to clarify issues and clarify settlement possibilities. Sometimes these sessions are known as caucuses;
(d) further joint meetings either to continue negotiations directly or draw up an agreement or to conclude the mediation.
What is the role of the mediator?
Mediators play a variety of roles:
(a) facilitator – assisting communications and negotiations;
(b) dealmaker – assisting the parties by comparing bargaining positions or outlining concessions;
(c) problem solver – assisting the parties by suggesting creative alternatives, options and solutions;
(d) transformer – transforming the dispute by allowing the parties to develop a fresh in-sight into the issues and their positions;
(e) evaluator – an adjudicator or an assessor providing the parties with an evaluation, either legal, technical, or commercial, by way of an appraisal of their cases and positions.
Does the mediator produce an enforceable award?
Most mediators act as facilitators and any settlement is the parties’ own settlement. It is unusual for mediators to produce awards. The process is thought to be non-binding, consensual and non-judicative.
How can it work if it is not enforceable?
Mediation works because the presence of an independent third party neutral helps all parties concentrate on reaching a settlement. Once a settlement is agreed, it can be converted into an enforceable contract like any other settlement agreement. Mediators can help in the process of formalising in the settlement.
What about confidentiality?
It is normal for mediation providers and the mediators to require all parties (including the mediator) to sign a confidentiality agreement. This ensures the process is treated as a without-prejudice negotiation on a strictly confidential basis. The mediator cannot be called afterwards to give evidence of what took place. Where parties are particularly concerned about confidentiality in joint meetings, the mediation can be conducted by means of separate meetings between the mediator and each party.