Mediation is a voluntary process where the parties in a dispute agree to refer it to an independent mediator. The mediator’s job is to listen to the concerns of each party, ensure that any misunderstandings are resolved and to encourage all sides to explore ways to resolve the dispute.
The mediator is not there to decide who is right or wrong and any party can withdraw from the meditation at any time. A settlement cannot be imposed by the mediator. Because what goes on in a mediation is protected by legal privilege anything discussed or disclosed cannot be produced or referred to in court should a settlement not be reached. This enables the parties to freely and openly discuss the dispute.
There are very often non-legal solutions, which a court may not be able to order, which a successful mediation can achieve. Also, unlike a court hearing, mediations are confidential.
Steps in a typical mediation
> INITIAL MEETING
A typical mediation will involve an initial meeting where all parties are present and the mediator will introduce everyone and then each party will be asked to make a short statement summarising their position. The mediator will make it clear that there should not be interruptions whilst the other party is making the statement.
There may be issues that need to be clarified and then the mediator will ask the parties to go into separate rooms. The mediator will shuttle between the parties to clarify any misunderstandings and encourage the parties to make proposals to settle. He will communicate any offers that are made and try to narrow the differences. This shuttle diplomacy may take all day and often can go into the night.
> EXPLORING AGREEMENT
If an agreement is reached the mediator will ask the parties to draw up a settlement agreement which will become binding once it is signed. There is sometimes a final joint session to conclude the mediation.
Even though an agreement may not be reached on the day if there is some common ground the mediator may be invited to continue to facilitate a settlement.