Stages of a Mediation

This checklist outlines the key stages of a mediation including the opening, exploration, and settlement phases.

Preliminaries

In most mediations, mediators welcome the parties and show them to their private rooms. They usually engage the parties in some casual chat to put them at ease.

Although the parties are free to decide their seating arrangements for the opening session (or joint session), the mediator can suggest what may be appropriate, for example if the parties cannot agree. There are several different theories on how the parties should be seated. For example, some mediators consider that it is too confrontational to seat the parties directly across from one another and, instead, will sit them diagonally across the table.

Opening Phase

When all the participants have arrived, and are settled in their private rooms, the mediator convenes the opening session with all parties present. The opening phase is crucial for building rapport and trust between the parties and the mediator and for establishing the ground rules for the procedure to follow. It starts with an opening statement by the mediator.

Mediator’s Opening Statement

The mediator’s opening statement usually:

• Outlines the mediation process and the various stages that follow.
• Explains the roles of the mediator and the parties.
• Establishes the ground rules for the mediation and addresses the practicalities (for example, that the mediation is conducted without prejudice).
• Encourages the parties to commit to the process.
• Reminds the parties that what is said in the mediation remains confidential.

Parties’ Opening Statements

Each party is invited to give a brief presentation which provides their perspective on the matters in dispute and highlights issues of particular concern. It is helpful to keep the presentations short (they usually last about ten to 20 minutes), although this varies depending on the complexity of the dispute.

Defining the Issues and Setting an Agenda

It should be possible to identify the key issues that need to be addressed during the mediation from the following sources:

• Case summaries or position papers for the mediator prepared by the parties in advance of the mediation.
• Any documents provided for the mediation.
• Information included in the parties’ or lawyers’ opening statements, or both.

This information can provide a useful structure for the mediation session. Steps the mediator may take include (either in advance of, or at, the mediation):

• Preparing an agreed list of issues to resolve.
• Prioritising the issues and agreeing with the parties an agenda for addressing the points of conflict.

Often the mediator uses a flipchart to make a note of the key points. This provides a ready point of reference and can help keep the discussions focused.

Exploration Phase

During the exploration phase, the mediator has private sessions with each party. Key points to note about these private sessions (or caucuses) include:

• The private sessions are on a confidential basis. The mediator does not disclose information provided to him during these sessions to the other side without the consent of the party providing the information.
• The aim is to identify each party’s key concerns, needs and interests.
• During early sessions, the parties might vent their emotions on the dispute. Allowing the parties to voice their grievances during the private sessions can reduce the risk of destructive tendencies during the joint sessions, when parties may, in the heat of the moment, become angry, frustrated, or may even threaten and intimidate.
• Gradually, the mediator encourages the parties to focus on the future and leads them to the negotiation phase of the mediation process.
•  The privacy of the separate sessions with the mediator helps encourage open discussions about the strengths and weaknesses of the case. It also encourages the parties to think creatively about options for settlement.

Negotiation Phase

During the negotiation phase, the parties start making offers and counter offers. In his role as a facilitator, the mediator is likely to use the following techniques:

• “Reality testing” the strengths and weakness of each party’s case.
• Coaching the parties on effective negotiation skills, such as techniques for breaking deadlock.
• Helping the parties find different ways of thinking about the problem and its resolution.
• Encouraging the parties to consider creative options for settlement.

Settlement Phase

If the negotiation phase is successful and the parties reach agreement in principle for resolving their dispute, the next phase is to formalise the settlement.

Even when the basic terms of a settlement are agreed, it may take several hours or longer, to draft the formal settlement agreement.

The mediator may oversee the drafting to ensure that:

• The issues in dispute are covered.
• No details are overlooked.
• The terms of the settlement are clear and unambiguous, so as to decrease the risk of further dispute.
• The parties are satisfied with the settlement and have dealt realistically with contingencies that may arise.