Prior to the Mediation
- The parties communicate with each other directly, or through their legal representatives if relevant, suggesting that they enter mediation to resolve their dispute. If one party is interested in exploring mediation they may ask ProMediation to contact the other party to suggest that mediation be considered. Entering the process is voluntary. This is important because both parties entering the mediation should have the will to resolve the dispute this way. If this is true then there is a very good chance that the dispute will settle.
- The parties approach ProMediation with a request to set up a mediation, suggesting dates and, if appropriate, a venue. The venue should be neutral and should have a facility where the mediator can meet separately/privately with each party, as well as with both parties together in joint sessions. In the absence of a suggested venue, ProMediation will suggest a venue with the costs of the venue to be borne by the parties.
- ProMediation will distribute an “Agreement to Mediate” document (see next tab) to be signed by both parties, and returned to the mediator. This sets out the arrangements, costs, and some rules. The agreement notes that it is important that each party, or a member of each party, has the authority to sign the Settlement Agreement (see header tab), should a solution be achieved during the mediation.
- The mediator will provide each party with a guiding document, drawing attention to pertinent factors. The mediator may ask each party to furnish him with a brief summary setting out its position in relation to the dispute ( see next tab). This pre-mediation questionnaire is absolutely confidential and entirely voluntary. However, should a party feel unconformable with any level of disclosure, it is acceptable that their explanations are saved for the mediation proper
At the Mediation
- On the appointed day the parties, and legal advisers if appropriate, meet at the venue.
- Introduction and housekeeping, joint session.
- The mediator introduces himself
- The parties introduce themselves
- Housekeeping details (breaks, teas, lunchtime, cellular phone calls, smoking, etc)
- Explanation of the mediation process and ground rules.
- The mediator explains the steps in the mediation process, eg. joint sessions and individual side meetings, confidentiality, without prejudice, etc.
- The mediator clarifies the role of the mediator in the process, especially noting that the mediator controls the process and the parties control the outcome
- The mediator proposes and secures agreement to mediation ground rules Eg. meeting etiquette, don’t interrupt, confidentiality, etc.
- Opening statements, joint session.
- The mediator gives each party an opportunity to relate their story without interruption
- Analyzing the dispute, separate sessions
- In private side meetings, the mediator seeks further information from the parties to identify the issues, positions, and needs of each party.
- Exploring the options for settlement (this is where the real work gets done), separate sessions.
- In private side meetings, the mediator assists the parties to generate a range of options to meet the various needs and concerns of the party on the issues.
- Choosing options for settlement, generally separate sessions.
- The mediator assists the parties to evaluate and narrow the options by reality testing, building on areas of agreement, focusing on interests rather than positions, exploring best options, etc.
- Finalizing agreement or confirming deadlock, a joint session
- The mediator summarises areas of agreement and clarifies areas of disagreement and checks these with the parties
- The mediator facilitates the parties to weave together common areas into an overall agreement.
- The mediator facilities the drafting of a settlement agreement, and the parties sign the agreement
- Alternatively, the mediator summarises areas of agreement and disagreement. The parties decide whether they wish to settle the areas of agreement, and leave the areas of disagreement to another time/method of resolution, or accept that there is no settlement.