At the Mediation
There typically will be a room large enough to sit all participants in the mediation and this will be used for joint meetings. In addition, each party may have their own room and this will be used for private meetings with the mediator.
Beginning the Mediation
The mediator begins with informal introductions in the parties' private rooms. At the beginning of the meeting, the mediator will establish ground rules for the day, reaffirming the strict confidentiality of the mediation and asking each party to respect the other side's right to be heard.
The mediator is likely to invite the parties to go to their separate, private rooms at the beginning of the mediation where the mediator will spend time talking with them in confidence. During this time the mediator will ask the parties about their expectations and will ask them about the strengths and weakness of their case (reality testing). It is important to remember that nothing will be repeated to the other party unless the mediator is given express permission to do so.
You should be prepared for long periods of waiting, while the mediator is talking to the other party. Sometimes the mediator will set a task, such as re-assessing risk analyses or testing alternative solutions in the light of developments that have emerged during the day. This allows you to process the levels of the mediation with each visit from one party to the next.
Sometimes parties become concerned that the mediator is spending ‘too long' with the other party. Don't worry - this is natural! It can be a sign of progress. Parties can also feel that progress is very slow during the early stages of the mediation session. This is also natural and the mediation will gather momentum as parties come closer to an agreement.
You will be provided with paper and pen along with a table and television during long waits. You can bring a book or other reading materials for the long periods in between visits with the mediator, but the focus is to make progress each time she visits your private room.
The mediator may decide that progress would be made by bringing the parties together again. At other times the mediator may suggest bringing together just the lead negotiators or lawyers or experts to change the dynamics of the mediation and bring speedier progress. This all depends on the circumstances of the mediation.
A settlement is reached when the parties come to an agreed solution. Typically, one or both party’s attorneys will draw up an agreement which, when signed, becomes binding. It is therefore essential that each party is represented by someone with full authority to settle the dispute. If no lawyers are present, the mediator drafts a Memorandum of Understanding for both parties to sign and take to court with them, and/or file with the court.
Disputes which do not settle on the day of mediation can often settle shortly afterwards as a result of the negotiations during the course of the day and the momentum gathered. Mediations which do not settle on the day often lead to fruitful face-to-face negotiations. In the event of non-settlement, it is likely that the mediator will ask the parties' permission to contact them within the following week. Further progress can usually be made once the parties have had time to reflect on the issues that have emerged during the mediation.
Where parties cannot reach a settlement, they can leave the mediation and pursue arbitration, litigation, or any other dispute resolution procedure. Nothing said or done in the mediation can be referred to outside the scope of the mediation.
After the Mediation
The mediator will contact the parties to check that there are no loose ends. Whether the mediation leads to a settlement or not, the mediator provides both parties with documentation of the mediation. If the parties do not come to an agreement, the only information documented is that mediation was scheduled, that the parties participated or not, and whether an agreement was met. If any elements are agreed on, the Memorandum of Understanding will be drafted and signed by the parties upon completion of the mediation session.