The objective of mediation is to achieve a resolution of the parties’ dispute that satisfies all parties and prevents the need for further proceedings. Individual mediators have different styles or approaches. Every dispute and set of parties is unique. There are, though, several common steps in any voluntary or mandatory mediation.
Procedures and protocol
The mediator ordinarily meets with or speaks to each party individually before the mediation starts. The mediator’s goal is to learn more about the dispute and the party’s positions. The direction of or need for this first conversation will be affected by the amount of information that the mediator has in advance. In some cases, the mediator has received a mediation brief from the parties that introduces the dispute and may even attach some relevant documents. In a case like that, the mediator may ask questions to clarify the information or fill in any blanks. If the mediator has not received any information in advance, he or she may ask the party or lawyer to explain the background to the dispute.
The mediator will ensure that each participant understands what mediation is, and explain each individual’s role in the process. The mediator will explain his or her own role and method, including that he or she will meet individually with the parties during the mediation session. In an effort to encourage open discussion, the mediator will explain certain confidentiality guidelines. Anything a mediator is told in private will not be shared with any other party unless the party agrees to disclosure.
The initial conversation between a mediator and party may also include a review of a mediation agreement.
Many mediators require that all parties sign a mediation agreement that sets out the details of the mediation. The Agreement may, for example, specify whether the mediation is open or closed. In a closed mediation, everything discussed between a mediator and the parties will be kept private. In an open mediation, the mediator will prepare a report for the parties that will contain the contents of the mediator’s discussions with them. Particular concerns about confidentiality and open versus closed mediations should be discussed with a lawyer before the mediation commences.
The mediation agreement may also address details such as: the mediator’s fees and who will pay them; policies regarding cancellation; and authorization for the mediator to make suggestions to the parties if settlement discussions become stalled. The parties at their first meeting together with the mediator usually sign the mediation agreement.
Individual mediators have developed their own style and approach to encouraging discussion and exploring settlement. Mediators usually commence a mediation session by advising the parties of guidelines or rules for the session. Two examples of very basic rules are: that only one person may speak at a time; and that parties shall not use the mediation to personally attack another party. The mediator may also explain that settlement discussions at mediation are without prejudice. This means that settlement offers at mediation cannot be relied on by another party after the end of an unsuccessful mediation. Whether a settlement offer made or received is with prejudice or without prejudice is an important issue to discuss with a lawyer.
Not every mediation achieves a settlement. If the parties do achieve a settlement, the mediator will write up the agreement and have the parties sign it. Unless all parties are represented by lawyers at the mediation session, the agreement may state that the settlement is not final until every party has consulted a lawyer. Lawyers representing the parties may prepare additional documents to record and implement the settlement in a way that will comprehensively resolve all issues and proceedings in a binding way.
Guidance: Preparing Yourself for Mediation