Atty Bios


The 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:

    (a) Not interrupting anyone who is speaking - make notes for later comments;

    (b) Refraining from personal comments;

    (c) Politeness at all times:

    (d) If 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.

While 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.

While 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.