The Mediation Process

 
Although many thousand disputes have been resolved through mediation, the process is not general knowledge.  The following notes aim to explain to the parties the process and the part they play in it.  The notes may, too, be helpful for legal representatives introducing mediation to their clients as the notes explain who does what and when it should be done if the process is to succeed.  Certainly, parties should see the notes well before the meeting.  They should be read in conjunction with Mediation Fees and Conditions.

Mediation puts the parties and their best interests at the centre.  It is a voluntary process and unless parties agree, it cannot happen.  The parties retain control throughout and it is they who reach agreement/s which are in their best interests.  "Best interests" may not necessarily be the same as their legal rights if, for example, Party A wishes to continue a business (or other) relationship with Party B when this dispute has been resolved.

1.  The Decision to mediate.

If, having considered the options available for resolution of their dispute the parties decide that mediation is the most appropriate way ahead they should invite Disputes Resolved to convene a meeting.  Payment of the fee for convening is payable at this point, (see Mediation Fees and Conditions paragraph 5).

2.  Bringing the parties together.

Disputes Resolved's experience is that one party, usually the better informed about mediation, is more favourably inclined to mediate than the other, (or others if more than two parties are involved).  Perhaps the other party feels at risk or disadvantaged because s/he did not take the initiative.  The first and often difficult task for Disputes Resolved is to tell parties how the process works and the benefits to them of mediation.  To this end, Disputes Resolved appoint a convenor, an experienced mediator, who is available by phone, e-mail or letter to explain what happens, the part the parties and their legal representatives play.  The parties retain control of events and make decisions, positions of strength which are lost if a case goes to Court.

3.  Arranging a meeting.

3a.  Who should attend?

Essential are the people who have authority to reach agreement and to settle, usually the parties, and the mediator.  The nature of the dispute and the importance attached by parties to cost are usually factors which determine attendance.  For some cases parties are able to state their wishes themselves having, perhaps, previously consulted their legal representative regarding their legal rights.  Attendance of legal representatives may not be necessary for such cases but Disputes Resolved often prefer them to attend as parties may benefit from their attendance.  For more complicated cases the presence of legal representatives is often of assistance as they are able to present a case which makes it possible for their respective parties to hear both parties' side of the story, perhaps, for the first time.  It is not unusual for barristers to attend mediation meetings if it is considered that their attendance would be helpful. 

3b.  When will the meeting be held? How far ahead? How long will it take? What time to start the meeting?

"When" is a matter for the parties to decide and legal representatives may wish to consult their clients and suggest to the convenor a number of dates acceptable to them both.  Disputes Resolved's experience is that if time is important it is often quicker if the convenor contacts the parties, legal representatives and mediator to find a date acceptable to all.  The convenor is better placed to shuttle between all concerned in order to expedite a meeting date.  Disputes Resolved have arranged meetings for a date only a few days ahead but apart from availability of attendees one has to consider the time necessary for the parties to assemble their statements/wish lists.

As Disputes Resolved ask for "exchange" of statements 14 days before the meeting, one is usually looking a month ahead for a date.  All those attending should keep the whole day free as meetings often run on to the evening.  One day is usually sufficient but complicated cases may require more time.  The convenor should be consulted regarding the time the parties/legal representatives anticipate should be allowed when fixing date/s so that diaries can be cleared.  10am has proved to be a convenient start time.

3c.  Where will the meeting be held?

Disputes Resolved's Mediation Fees and Conditions paragraph 7 requires the parties to provide accommodation and they should ensure that this is adequate for their needs having in mind the number of people involved and the needs of comfort and confidentiality.  If a site inspection would prove useful, a venue nearby should be arranged.

4.  The mediator

4a.  Selecting the mediator.

Disputes Resolved's convenor seeks a mediator with appropriate mediation and subject experience from Disputes Resolved's country-wide network.  Initially a Summary of Experience of a single mediator is offered to the parties or their representatives.  For practical and economic reasons the convenor usually offers a name whose practice is not too distant from the meeting place.  Should s/he not prove acceptable to either party another name and Summary of Experience will be offered, and so on.  Experience shows that the appointment of a mediator may be achieved sooner by offering one name initially rather than a choice.  For some cases two mediators, working together, may be advantageous.

When a name has been agreed Disputes Resolved formally appoints the mediator, briefs, pays and debriefs him/her after the meeting.

4b.  Pupil mediator.

Disputes Resolved has a commitment to providing training and experience for mediators seeking accreditation and as pupil mediators invariably have expertise to contribute their presence at a meeting is invariably valuable for all concerned.  Parties or their representatives are asked to state if they would prefer not to have a pupil in attendance.  The name and credentials of a prospective pupil will be provided for acceptance before a pupil is invited to attend.  There are no cost implications for the parties.

5.  Statements (Wish lists)

5a.  What is the object of statements?

Statements, which for the benefit of lay parties are often referred to as "wish-lists", are intended to provide the mediator with an indication of the scope of parties' differences and to clarify for their benefit their respective wishes.  Experience suggests that bullet point, succinct items are the most helpful.  A brief statement of each party's position with mention of their strengths and the other side's weaknesses usually assists to focus the minds of the parties on what the dispute is about.  Parties should remember that they reach their own agreements; the mediator does not give judgment or make an award.

5b.  What form should a statement (wish list) take?

Parties moving towards a mediation meeting, particularly those who do not have legal representation, often have difficulty knowing what to put in their ‘statement’. The object of the statement (which is ‘without prejudice’ – off the record) is to provide the mediator with an indication of the scope of the matters which the parties wish to resolve. It is often referred to as a ‘wish list’ because it should set out the matters which the parties wish to settle. Ideally the wish list should be single line, ‘bullet-point’ statements. As an indication of the form (rather than the substance!) we give below the sort of thing to have in mind:-

“Schedule of items from Ms. Snooks for mediation meeting, Mr. Bloggs and Ms. Snooks, mediator Pat Able to be held at my place on ….

• Mr. Bloggs to pay compensation of £X for damage caused to our flower beds.
• Mr. Bloggs to construct a new fence along ….
• Mr. Bloggs to undertake to ensure that his dogs are controlled and not allowed to worry our goats.
• Mr. Bloggs to thoroughly clean off with …. and wash down with pressure hose our … which his muck spreader ….

I am prepared to apologise for allowing visitors to park partially blocking the lane as has happened in the past and try to ensure that I do not leave our cars unattended in the future. I will undertake, too, to have a hard-bottom put in the passing lay-by, permanently remove our trailer from it and see that it is kept clear. And I will fix goat-proof wire mesh to the timber fence between Mr. Bloggs’ property and mine.”

(Note. You may wish to keep your concessions up your sleeve but it is as well to have considered items you are prepared to concede with a view to reaching settlement. Remember mediation is concerned with the parties' interests, rather than their rights, and with their present and/or future business and/or personal relationships. It is concerned with looking for solutions to problems rather than looking back at what has happened. Mediators often find that an apology is a major factor in resolving disputes.)

If you have tried to settle the matter before but failed it is sometimes useful to say what offers have been made and, if there are any, the reasons why negotiations broke down. These will help the mediator (and may remind you) to understand how close the parties may have been to settlement previously.

At the end of the meeting ‘heads of agreement’ are listed and signed by the parties and comprise a contract between them. We will provide information about arrangements later.

(This note is intended to assist but as we are not advisers the responsibility for what your statement contains rests with you. Obviously you should be guided by your legal representative, if you have one, who will most probably prepare your statement.)

5c. When must statements be submitted?

Disputes Resolved ask for three copies of statements to be passed to the convenor 14 days before the meeting date (more copies if there are more than two parties).  It is most important that this date is observed, as the convenor needs time to exchange statements between parties and to pass to the mediator in sufficient time for her/his consideration.  With the statements the convenor will send parties and the mediator a Mediation Meeting Information Pack containing standard forms of agreement.  The mediator's pack also includes a mediator's checklist as an aide memoire.

5d.  Documents.

While inclusion of documents with statements is not compulsory, parties may wish to refer the mediator to documents which help explain their case.  Ideally these should be as few as possible and be of fundamental relevance.  It helps for the parties or their advisers to agree a "core" bundle of documents common to all of them so that each party and the mediator knows what will be produced at the meeting.  Copies of the documents should be lodged with the statements.  If there are any documents which either party wishes to be disclosed to their advisers and the mediator but not the other party, copies should be sent to the convenor so marked.

6.  Mediation Fees

6a.  How are fees calculated?

Fees are based on the value and/or complexity of the claim and/or counterclaim.  Paragraphs 1, 3 and 4 of Mediation Fees and Conditions refer. 

6b.  When are fees payable?

See paragraphs 5 and 6.  A rule of thumb is that the outstanding balance of the mediation fees are sent to the Convenor with the party's statement; the £300 convening fee having been paid when the parties decided to mediate.  See 1 above.

7.  The meeting.

7a.  Before the meeting.

The parties and the mediator will be provided with Mediation Meeting Information Packs which contain standard forms of agreements and other documents.  Parties should appreciate that at the meeting each side has a chance to put its case and to hear what the other side has to say.  An experienced mediator will help both sides reach agreement.  The mediator is not a judge and will not take sides or decide who is right or wrong.  There is no need to call witnesses but parties may be accompanied by a legal representative, friend or advisor.  Parties should have a positive approach to mediation and to reaching agreement as, without willingness to agree, mediation cannot succeed.  Parties have authority to settle if agreement is reached.  Relevant important documents should be taken to the meeting but copies provided before it (see 5d above). 

7b.  At the meeting.

The mediator manages the meeting and is in charge of proceedings. 

An opening meeting is held with the parties when the mediator invites all present to sign the Agreement to mediate, of which parties will have had advanced copies, and to confirm that they have authority to settle if agreement is reached.  S/he explains arrangements using a check-list provided by Disputes Resolved.  See 5c above.  Parties and their representatives are invited to put their "case" for the other party/parties and the mediator to hear.  Discussion usually follows. 

Private meetings (caucusing): unless agreement is reached at the Opening Meeting, parties will usually retire to separate rooms and the mediator will pass between parties and take part in the meetings.  Matters discussed with the mediator at private meetings are confidential and will not be disclosed by the mediator to the other party without permission.  But, with permission, he may sound out a party regarding a tentative offer from one party to the other.  The mediator may propose an open meeting if the gap between parties appears to be narrowing or further caucusing may take place.

The meeting can be closed by the parties and/or mediator at any time.  If agreement is reached the parties will prepare and sign heads of agreement which are binding on the parties.  If agreement is not reached but appears possible, the mediator may suggest parties take a day or two to think over the outcome of the meeting after which s/he will contact them regarding unresolved matters.  Even if the mediation does not end with agreement between the parties, the meeting may have been helpful in giving parties an understanding of the other's point of view and so pave the way for another attempt to made. 

8.  Mediation without a meeting.

Mediation without a meeting which is frequently preferred by parties who do not wish to meet. 

9. Disputes Resolved.

Disputes Resolved was founded in 1993 by Jamies Franks and John Mulcare, both of whom are CEDR accredited mediators.  Disputes Resolved has been approved to provide mediation facilities for parties in Sussex County Court proceedings who wish to resolve their disputes without recourse to Court proceedings if possible.  Disputes Resolved's country-wide network of mediators enables the firm to offer services in England, Scotland and Wales.