The mediator’s role is to use their skills and experience to facilitate a settlement to a dispute. The mediator will listen carefully to everything that is said and use the information to assist the parties to build a durable resolution.
The parties do not have to persuade the mediator of anything and the mediator will not express any opinions, even if asked to do so. Their job is to help both parties to resolve the dispute, not to give them advice or to suggest what may happen at court.
The parties need to look to persuade each other that a particular settlement is a better alternative than going to court or having a long-running dispute. How that process of persuasion is facilitated is one of the key roles of the mediator. The mediator will not suggest or advocate any solution; instead any solution will be discovered and owned by the parties involved.
The process of mediation
Every mediation is different and it is the parties’ process, not the mediator’s.
Unless anyone has any objections, the mediator will generally begin by inviting everyone to the main room where everyone introduces themselves and agrees some ground rules. These may include:
- Use of first names;
- Avoiding personal accusations
- Not talking over each other (in other words, only one person speaks at once)
That said, it will be up to the parties concerned to agree whether these are suitable rules for their mediation.
Before the process starts, each party will be asked to confirm that they have authority to settle the claim if/when the stage of agreeing terms is reached.
Once rules have been agreed and authority confirmed, the mediator will summarise the mediation agreement that all parties will have signed and remind them that the process is confidential and without prejudice. Thus no lawyer or client (nor anyone else present) may refer to what is said during the mediation at any other time or in any other place.
Similarly, the mediator will remind those present that they will not discuss the mediation with anyone, and that no one may call them as a witness or have them summonsed before a court to say what went on. The mediator will be neutral and impartial and to do this they must be wholly outside any litigation. This important safeguard is contained in the agreement which all parties sign.
The mediator may make some notes during the mediation, and may ask one of the parties to write down the terms of any offer they wish to make on their notepad but, once the mediation is finished, all notes will immediately be shredded, including those offers. The mediator will also shred all papers they are sent unless the parties ask for them back. The mediator will only retain the mediation agreement which was signed before the start of the mediation.
Once the mediator has dealt with the administrative issues, they will invite each party to summarise in turn what it is that they hope to achieve from the mediation.
The mediator will be happy to listen to as much detail or history as those involved think will assist the process, but they may work on the assumption that the mediator has read and understood the papers before them.
However, the mediator will not object to having their attention drawn to particular points, legal principles or documents, provided the point about not seeking to persuade them is remembered.
The mediator may then (if it seems appropriate) try to facilitate a discussion between the parties in open session, perhaps using a circulating document which may contain proposals people wish to make. Initially, the mediator will look to understand what, if any, common ground there may be and what alternatives are open to you all.
Sometimes the mediator will ask people to brainstorm or come up with some wholly without prejudice ideas for settling the matter which are not offers, just possible ways that people looking in on the dispute from the outside might suggest that a resolution could be reached. That may or may not become appropriate and may be done in open session or in private.
Equally, people sometimes find that it is more helpful for the mediator to shuttle between them for most of the mediation.
In either private or open session, the mediator could ask what to some may seem like challenging questions. They may seem like they are playing Devil’s Advocate, but please remember that nobody has to answer the questions. The mediator is not a judge.
The questions the mediator asks will be intended to clarify their understanding and to reality test the arguments, to see how the parties think they might stack up against objective criteria, and to look at the options and alternatives that may be open.
They may ask about the substantive issues, about costs or evidence, about the legal advice or the risk assessments that have been conducted, or there may be wholly different questions that seem or become relevant. Remember, however, that the mediator is not a lawyer.
The mediator understands that arrangements are to be made for each party to have a private room set aside for them.
Anything said in the private session to the mediator will be confidential between them and those in that private session, unless they specifically authorise the mediator to repeat what they have said in the other room.
In that context, if it is an offer, the mediator will ask the person making it or their lawyer either to write it down so there is no doubt about the terms or to deliver it directly across the table or (less formally) to the other room themselves.
If it is some other fact or statement, argument or other message, the mediator may summarise it in their notebook but they will check with the party concerned that they have done so correctly before leaving the room.
The parties will appreciate that they should not ask the mediator what they have been told in private session in the other room. They will never disclose that information unless authorised to do so.
The mediator will normally prefer to remain with the parties as much as possible so that they can get a feel for how their thinking is developing. This includes when the parties are discussing matters with their solicitors because the mediator will simply be like a ghost in that process. The mediator will say nothing in the other room about what they hear, so the benefits are entirely to the party they are with at the time, in speeding up the mediator’s understanding and therefore their ability to help resolve matters.
The mediator will, therefore, encourage each party to let the mediator stay with them as much as possible but the mediator will not be offended they are asked to leave.
Once all parties have reached a position where they have a settlement, the mediator will ask one of the lawyers to draw up a draft agreement or order, for all the parties to sign if they are sure that they wish to do so and understand the terms of the settlement.
It is not for the mediator to protect any of the parties from entering into an agreement or settlement which is disadvantageous to them. If any party is not confident about the offer or agreement, they should take such advice as is appropriate. The mediator will always allow time for consultation with a lawyer or other appropriate person if requested. To that end, if any party thinks they may need to externally refer to someone, they may wish to notify them in advance so that they are near a telephone.
Leaving the mediation
If there comes a time when one party feels that they wish to leave the mediation, the mediator will usually ask the party concerned to agree to take a few minutes to discuss the reasons.
Sometimes, rather like the coldest part of the night being just before dawn, there is sunlight just moments away but it is difficult for anyone other than the mediator to see it
No settlement on the day
In the unlikely event that the mediation does not lead to a settlement on the day, experience shows that most then reach settlement within a few more days. Any offers made during the mediation, however, will lapse with the end of the mediation.
If any party would like an offer to remain open until some later time after the mediation is open, many people say that it is helpful to write it down at the end of the mediation session. It is sometimes said this avoids ambiguity and confusion but it is a matter for the parties concerned.