How it Works: The Principal Stages in Mediation
The unstructured nature of mediation can be disconcerting to those who may be interested in submitting a dispute to mediation, but who may not be sure what to expect. The parties in a mediation, along with the mediator, work out and agree upon the procedure that is to be followed. The procedure outline should be understood as being for guidance only, since the parties may always decide to modify the procedure and proceed in a different way.
Starting the Mediation
Brian provides a forum for the parties to agree to submit their dispute to mediation.
The process is commenced when one of the parties calls us and requests a mediation. The request should set out summary details concerning the dispute, including the names, telephone numbers, and e-mail addresses of the parties and their attorneys, and a brief description of the dispute. These details are not intended to define all the issues or limit the requesting party’s case, rather they are intended simply to supply sufficient details to enable out staff to set up the mediation process.
Initial Contacts Between the Mediator and the Parties
If the parties agree, the mediator may conduct a series of initial private discussions with the parties, which often take place by telephone. The purpose of these initial contacts will be to set a schedule, indicate what documentation, if any, should be provided by the parties prior to their first meeting, set the timetable for the supply of any such documentation, establish a time for the first meeting, and understand a party’s priorities.
The First Meeting Between the Mediator and the Parties
At the first meeting, the mediator will establish with the parties the ground rules. In particular, the mediator will:
- Discuss with, and obtain the agreement of the parties on, the question whether all meetings between the mediator and the parties will take place with both parties present, or whether the mediator may, at various times, hold separate meetings (caucuses) with each party alone; and
- Ensure that the parties understand the rules on confidentiality.
At the first meeting, the mediator will also discuss with the parties their agreement as to which issues are their top priorities, what additional documentation is necessary for each to provide to the other, and the need for any assistance by way of neutral experts.
Subsequent Meetings
Depending on the issues and their complexity, the economic importance of the dispute and the distance that separate the parties’ respective positions in relation to the dispute, the mediation may involve meetings held on only part of one day, across several days, or over a longer period of time. The stages involved in the meetings held after the first meeting between the mediator and the parties would, where the mediator is playing a facilitative role, normally involve the following steps:
- The gathering of information and the identification of the issues involved;
- The exploration of the interests of the parties underlying the position that they maintain in respect of the dispute;
- The development of options that might satisfy the interest of the parties;
- The evaluation of the options that exist for settling the dispute in light of the parties’ interests and each party’s’ alternatives to settlement in accordance with one of the options; and
- The conclusion of a settlement and the recording of the settlement in agreement.
Not all mediations result in a settlement. However, a settlement should be achieved where each party considers that an option for settlement exists which better serves its interests than any alternative option for settlement by way of litigation, arbitration, or other means.
Parties’ Private Consultations
Throughout the mediation process, a party may wish to undertake, at various stages, private consultations with his or her attorney, advisors and experts for the purposes of discussing various aspects of the mediation or of evaluating options. It goes without saying that such private consultations are encouraged to promote the mediation process.
Seek Experienced Mediation Representation
If you need assistance with a divorce or other dispute and believe mediation might be a viable option, it is important to consult with an experienced attorney familiar with the mediation process