Mediation is a magical process which enables parties to resolve their disputes swiftly, cheaply and effectively. It is a way of avoiding lengthy and costly litigation and achieves a more satisfactory outcome for all - and it works even when all other attempts have failed.
The following is an outline of the format of a typical UK model of 'legal' mediation, generally accepted throughout this country in non-family mediation. Variations of this format are used in family mediation and also adopted in some European countries.
Venue and format
There are no prescribed rules as to where a mediation should take place. It will generally be conducted at one or other of the parties' lawyers' offices, or at the premises of the mediator provider. Court-annexed mediations usually take place on court premises after court hours.
Mediators may use an assistant or co-Mediator, particularly in more complex mediations. These co-mediators can be selected in the same way as the lead mediator, and may be entitled to a fee, or they may simply be brought in independently by the lead mediator, with or without a fee. The precise role of the co-mediator in the mediation will depend upon the lead mediator's preferences and his or her style of mediation, as well as the co-mediator's level of experience. Some will favour a joint approach, treating the co-mediator as part of the 'mediation team'. Others will prefer to use the second mediator as an assistant: to take notes if appropriate, or to write on the flip chart or board if available, us, and in between the caucus sessions, to discuss and brainstorm issues which have arisen.
The mediator's opening
The mediation usually commences with all parties together in one room, invariably around a table. The mediator will make an opening statement in which he or she will outline to all present the aims of the process and the mediator's role in it. It remains surprising how many parties attending mediations, whether experienced lawyers or simply members of the public, are not aware of how mediation works. So it will be necessary for the mediator to state the purpose of the process and the procedure to be adopted. The mediator will outline and emphasise that his or her function is that of a neutral facilitator and not an adjudicator or arbitrator. He or she will outline what is to happen, detailing the way in which joint sessions and private 'caucus' sessions will be used.
The parties' opening statements
Each party, and/or their legal advisor, makes a short opening statement, without interruption, setting out the main points of their case. This is a vital element of the mediation and its effect should not be underestimated. It can set the tone for the entire proceedings that follow. Where the dispute has hitherto been conducted by correspondence, it may well be the first time that the parties meet face-to-face; it will probably be the first time that one party has an opportunity to hear the other side's story first hand, rather than sifted, repeated, and interpreted by a number of intermediaries. It will invariably be the first time, for example, that one party's insurer or other decision-maker comes face to face with the other party. And sometimes it is the first opportunity to see the other side's lawyers 'in action'; this can often be a salutary experience, as each party will undoubtedly have had a mental image of the other side's lawyers, and perhaps to see that they are 'human', and doing just as good a job if not better than their own lawyers, can occasionally help to move the dispute forward. For these reasons, the opening statements can be a most therapeutic constituent of the process, and consequently the parties should use it to good advantage.
Too frequently, lawyers are asked to furnish their party's opening address and use the occasion simply to regurgitate, ostensibly for the mediator's benefit, a series of legal submissions. This merely demonstrates a basic misunderstanding of the role and function of the mediator, mistaking him or her for an arbitrator, and only serves to irritate the other side. Rather, the parties should be encouraged to give their statements themselves, setting out a more personal perspective of the dispute, augmented if necessary by their lawyers. This is their "day in court" and it is their chance to be truly heard and to convey the extent and depth of their feelings - to "tell it from the heart".
Private caucus sessions
At the conclusion of the opening statements, the parties will generally (in the UK model of mediation) separate for the separate "caucus" sessions into their respective rooms. This simply means the private individual session where the mediator sees each party privately and in confidence on their own. If there is a room allocated for the mediation itself, the mediator may invite each party to come to that room for the private caucus sessions. More usually, however, the mediator will visit the parties in their respective rooms. The format of the foregoing will obviously depend upon the venue, the number of parties, whether the mediator is acting alone or with a co-mediator, and the facilities available in each room.
The separate caucus sessions will normally continue until such time as the mediator feels it appropriate to bring the
Joint sessions can effectively be used when the parties have reached a sufficient accord in principle, so as to justify bringing them together to finalise and shape the more detailed points of the settlement. Whether the parties have in fact reached such a stage may in itself be a matter of delicate judgment.
Once a true settlement is reached, the step that transforms the mediation from a voluntary non-binding process to a fully binding accord is the signing of a settlement agreement. The parties will need to create a document which they can each sign to signify their acceptance to being bound. A "Heads of Agreement" document will usually be drafted immediately, either by the parties themselves or by the lawyers if they are present, or by the mediator.
The only matter then remaining is who buys the champagne!