Mediation Process

A typical mediation has no formal compulsory elements, although some elements usually occur, based on good practice and experience of what works:

Pre-mediation
The mediator holds preliminary meetings with the parties individually and confidentially – get to know the parties, explain the process, ensure they mutually agree to the choice of mediator, answer questions and put them at ease.

Mediation

• Mediator’s opening statement: mediation begins with mediator’s welcome and opening statement, which includes a brief description of the role of the mediator and participants, the mediation process and any ground rules.
• Party’s statements: each party then presents a statement of the dispute from his or her perspective. Parties’ statements are noted and summarised back by the mediator, checking with the parties for accuracy. The advantages of this procedure include assuring the parties that their concerns have been heard by the mediator and each other; providing opportunities to create a positive social atmosphere conducive to effective negotiation; and providing two opportunities for an appreciation of each party’s perspective. Emerging needs and options for resolution are acknowledged for use later in the mediation.
•  Identification of issues & agenda setting:  listed issues form the basis for more effective negotiation and co-operative problem-solving. The topics are expressed in neutral and, whenever possible, mutual terms.
• Joint exploratory discussion: parties are encouraged to focus on a topic for discussion or negotiation from the list of issues. The mediator encourages parties to communicate directly with each other. The parties’ interests and needs are further clarified.
• Private meetings between parties and facilitator: parties are provided with the opportunity to express opinions and give information privately to the mediator if they feel more comfortable doing so than in joint sessions. The private meeting can also assist parties to prepare to negotiate, generate options and ensure that particular proposals are realistic.
• Joint negotiation: this provides the basis for joint problem solving, exploring the agreement and may be followed by further private meetings and joint sessions where necessary.
• Final session: the parties meet with the mediator to discuss issues and possible options for resolution. The mediator facilitates final negotiations and fine-tuning of the agreement. Alternatively, the mediation may need to be adjourned or terminated.

Steps 1-4 usually take place in order. Other stages, with the exception of the concluding joint session are seen as optional depending on the circumstances.

If the matter has not resolved, the mediator will discuss with the parties the next steps to be taken, including the need to obtain any further material. If appropriate, directions may be issued by the Tribunal.