mediator should be in control of the process of mediation and, accordingly,
should be familiar with the stages of a mediation. A skilled mediator will not
always establish definite divisions between the various stages, but must keep
them in mind when proceeding with the mediation. The following are the usual
stages of a mediation.
Preliminary Steps. The mediator should open the proceedings by explaining
the process of mediation to the parties and their representatives. Some parties
and their lawyers may feel that they are sufficiently experienced in and exposed
to mediations that they do not need this explanation. Since each mediator will
have personal preferences as to the procedure to be followed, this step is
nearly always necessary. The mediator should also cover such matters as
refreshment and other breaks, location of the washrooms and the way in which the
parties wish to be addressed.
Procedure. The mediator will set up certain rules of conduct which are to be
followed in the mediation. These should include:
interrupting anyone who is speaking - make notes for later comments;
from personal comments;
at all times:
a party intends to quit the mediation, give the mediator five minutes warning.
Caucusing. This is a procedure which may be initiated by a party or by the
mediator. The mediator should explain caucusing to the parties so that neither
of them will feel that an advantage is being taken of the party not
caucusing with the mediator.
Disclosure. Each party is asked to set out their perspective and view
of the circumstances leading up to the dispute - without interruption or comment
from the other. The mediator may ask the parties which one wants to go first or
may simply decide who will go first - if the matter is being litigated, the
plaintiff will probably be asked to go first. The mediator should engage in what
is called "Active Listening" - making sure that the party is understood by the
mediator - if necessary, repeating the party's statement in the mediator's own
words to be sure that the understanding is as complete as possible.
Interests. Since parties in a dispute usually hold positions about the
dispute, it is essential to determine what are the interests of the parties
rather than their positions. Only if the interests are determined, is it
possible to work towards a settlement.
Issues. Once the parties have heard each other - perhaps for the first time
- the mediator tries to help them settle on what are the matters to which a
solution should be found. The hearing of the viewpoint of the other party and
the determination of the interests of the parties may help them to reach
agreement on what needs to be settled, not necessarily on how to settle the
points in dispute.
Options. In this part of the process the parties and the mediator each
suggest ways in which the dispute might be settled.
Legitimacy. The parties and the mediator work through all the options
in an effort to determine which of them (or which parts of them) might be
appropriate to assist in the settlement of the dispute.
Agreement. If the parties have reached an agreement on the dispute, or even
an agreement on some part of the dispute, the mediator should prepare a brief
memorandum setting out the matters on which (at least tentative) agreement have
been reached. The parties, if represented, should consult their professional
advisors in order to settle the final agreement.
the mediation process may appear formal and cumbersome when it is set out in
steps, it can (and should) be, with the assistance of a skilled mediator, be a
seamless process which is really controlled by the parties; not controlled by
the mediator. Even
if the parties are unable to reach complete agreement on the matter in dispute,
the process of mediation may have enabled them to agree on some parts of the
dispute or to agree that some aspects of the dispute may be disregarded and
therefore do not need to be the subject of court or other adjudication.
compulsory mediation for cases before the court is relatively new, the concept
of mediation, however it is named, is of considerable antiquity. It is a
relatively "peaceful" way to attempt to settle disputes and has the additional
advantage that it is much less costly and emotionally draining than final
resolution before the courts.