The mediation process

The mediator

A key step in any mediation is the selection of a mediator. There are no certification programs for mediators that are recognized everywhere. Mediators come from many different backgrounds.

Before hiring a mediator, you should ask for information about their training and experience. It’s a good idea to ask for résumés and references and to contact more than one mediator before making a decision.

The mediator must not have any personal or business relationship with anyone in the dispute. While it is often helpful, it is not necessary for the mediator to be expert in the subject matter of the dispute.

The mediator shapes the process while the parties control the outcome. The mediator:

• Manages and structures negotiations
• Establishes rules for conduct
• Keeps communication open and discussions on track
• Is a sounding board, innovator and reality tester

Mediators assist with developing ideas for resolution. They do not control the process because it is parties to the dispute who are most able to recognize a workable solution.

Mediators will not usually suggest that a party compromise. Instead, they will encourage settlement, ensure that proposals are tested and make certain parties understand the consequences of walking away from a possible settlement.

Length of the mediation

The time required to mediate a dispute varies according to the complexity of the dispute. It can take less time if the parties know the facts and understand their interests.

Mediation can take longer if parties are emotional or if they need to discuss issues slowly to understand them completely.

Mediation is flexible. Mediators can adjust to differences and mediate at a pace comfortable to all parties.

A mediation session is often three or four hours long. It is not uncommon for mediations to last a full day or more. This is often true of cases involving complex commercial issues.

Preparing for mediation

Think about some important questions before the mediation, such as:

• What is the best outcome I could reasonably hope for?
• What is the worst outcome I should prepare for?
• What am I most concerned about and what can the other person do to respond to those concerns?
• What is the other person most concerned about and what can I do to respond to those concerns?
• What are my options if I do not reach a settlement in mediation?

Gather together any documents that may help resolve the dispute, including statements, invoices or photographs. Bring originals to the mediation and copies for each party and the mediator.

Lawyers often exchange information before the first mediation session. This gives everyone a chance to become familiar with it and can make mediation more efficient.

Sometimes the mediator will ask you to provide a short summary report before the first session. It is likely to include:

• What you think needs to be resolved
• The facts or circumstances that led to the dispute
• What you and the other party disagree about and what you agree about, and
• What has already been done to try to settle the dispute

Who must attend mediation

The mediator and all the parties involved in the dispute must attend mediation.

The attendance of other people depends on the issues being mediated. It’s important to ensure everyone who has the authority to reach an agreement is present.

Other people you may want to attend include:

• Your lawyer to provide advice
• A friend or family member to give support
• An expert on the subject in dispute
• A representative of the insurance company if insurance is involved

If anyone involved in the dispute is an incorporated company, then a person representing the company must attend. This person should have the authority to settle the case on the company’s behalf.

All the parties to the mediation should agree about the rules for the involvement of others before beginning the mediation.

The Mediation Session

The mediator will typically guide the process through four stages:

1. Mediator's opening statement – The mediator describes the process, establishes ground rules for conduct, reviews the agreement to mediate, describes their own role and confirms everyone’s commitment to proceed.
2. Story development – Each party gives a brief summary of the facts of the dispute. The mediator then clarifies and frames the issues in terms acceptable to the parties.
3. Identifying the interests – Using questions, the mediator shifts the focus from positions to underlying interests, and ultimately formulates a goal statement incorporating all of the interests identified.
4. Generating options – The parties list and evaluate options for satisfying as many interests as possible, and, thereby, for reaching a settlement. The mediator helps to assess and analyze the options, but does not take sides.

At some point during the mediation, the mediator may want to meet separately with the parties. You can take a break any time to talk to your lawyer or to someone else.

If you reach a settlement on some or all of the issues in dispute, you will likely formalize it with an agreement signed by all parties.

A settlement agreement must be completely voluntary. You can choose to review it with a lawyer before signing it.

Settling the Dispute before Mediation

Any settlement agreement should be clearly understood by all parties. You may formalize the settlement with a written settlement signed by all parties or you can go to court for a consent order. A judge signs the consent order and makes the settlement enforceable by the court.

Make sure you let the mediator know you have settled the dispute. If you have already signed an agreement to mediate, be sure you have done everything you are obliged to do. This includes giving the mediator proper notice of the cancellation.