AN INTRODUCTION TO MEDIATION – GETTING IT OVER THE LINE
Picking up from where we left off last time, the parties have agreed to enter willingly into the process and a mediator has been appointed or agreed, this short overview will look at the process on the day and dealing with settlement.
WHAT HAPPENS ON THE DAY?
Before the mediation
Once the parties have agreed to mediate they will enter into a mediation agreement which sets out the minimum procedural framework for the process, including: when, where, who attends (with authority to settle), confidentiality and costs.
The parties will usually exchange short position papers 7-14 days before the mediation, setting out their cases. It is also usual for the parties to agree a core bundle of documents for use at the mediation.
The mediator will generally wish to speak to the parties (or at least their advisers) before the mediation day. The purpose of the discussion will be to ensure that the mediator has a sufficient understanding of the case and the main points of contention that need to be resolved.
At the mediation
Mediations may last anything from a few hours to several days in complex multiparty disputes. Most commercial mediations last one or two days. The process is entirely flexible.
It is normal for each of the parties to have a private room for confidential consultations on their own and with the mediator during the mediation. There should also be a further room large enough for all parties to meet with the mediator jointly.
The mediator will chair and take responsibility for determining the procedure at the mediation, in consultation with the parties.
The likely procedure will comprise:
- preliminary meetings with each of the parties when they arrive at the venue;
- a joint meeting of all attending the mediation, at which each of the parties will normally be invited to make an oral presentation;
- a mix of further private meetings and joint meetings (which may involve all or some of each party’s team), as proposed by the mediator and agreed by the parties.
Professional advisers, particularly lawyers, can and usually do attend the mediation. Such advisers play an important role on a number of fronts, including: in the exchange of information and opinion on fact, evidence and law; in supporting their clients (particularly individuals) in the negotiations; in advising clients on the implications of settlement; and in drawing up the settlement agreement and any consent order. Formal courtroom advocacy is rarely effective – this is an occasion for commercial reality and business negotiation.
No verbatim recording or transcript should be made of the mediation by the parties or the mediator in any form, and any such notes should be destroyed at the conclusion of the process and may not be disclosed or relied upon in any subsequent action.
Mediations can last beyond a normal working day and it is important that the key people attending for each of the parties remain present or, at worst, available by telephone for so long as the mediation continues. Any time constraints should be reported to the mediator as soon as known, as any unexpected departure can be detrimental to the progress of the mediation and perceived as disrespectful by other parties.
PRIVATE MEETINGS (OR CAUCUSES)
The mediator will often conduct a series of private meetings (sometimes called caucuses) with each party, seeking to learn more about each party’s expectations and to test the parties as to the strengths and weaknesses of their case. It is critical to note that nothing said in these meetings is passed to the other party without specific authority for the mediator to do this.
It is likely that the mediator’s first private session(s) with each party will be ‘exploratory’ in nature, seeking to get a better understanding of the issues that separate the parties and their underlying interests (commercial, reputational, emotional, etc).
In the course of the day the mediator will facilitate discussions between the parties but may be more proactive if the circumstances are correct. The mediator may focus on the key decision makers and encourage the parties to move towards making offers and counter-offers, the approach will be informed by what has been learned during the day and, depending on the case, there may be scope to explore non-monetary traded solutions as well as a financial restitution.
CONFIDENTIALITY IN RELATION TO THE MEDIATION
The standard mediation agreement provides that what happens at the mediation is to be treated as confidential by the parties and the mediator, including the facts and terms of settlement.
If a settlement is reached, the lawyers present will draw up a settlement agreement. If no lawyers are present, the mediator generally helps with the drafting.
The agreement only becomes a binding document once it is signed by all the parties.
If no binding settlement is achieved, the parties retain the ability to pursue their rights either through litigation or arbitration as appropriate.
However, the mediator may be asked to reconvene a further meeting at a later date, as settlement can be achieved in the following weeks or even months.
THIS OVERVIEW IS PROVIDED AS A SIMPLE GUIDE AND EACH INDIVIDUAL MEDIATION MAY ADOPT A NUMBER OF VARIABLES TO ASSIST THE PARTIES IN ACHIEVING SETTLEMENT. THE BENEFIT OF MEDIATION IS THE LACK OF RIGIDITY.
IF YOU HAVE ANY QUERIES ON ADVANCING YOUR DISPUTE TO SETTLEMENT THROUGH MEDIATION PLEASE CONTACT OUR OFFICES DIRECTLY.