Following our last article on the purpose and advantage of mediation in disputes, we now look at what actually takes place during mediation.
Once all parties agree to mediate, choose a mediator and schedule the date, the question then arises: “What will happen on the day of mediation”? Unlike a trial, mediation is an informal process that takes place at a neutral site, often the mediator’s office suite. The neutral location helps parties feel more comfortable, as neither side has any distinct advantage in being able to have immediate access to documents or staff.
Each party is allowed to bring a solicitor, a companion, or whoever else they deem important. It is always best to disclose before the mediation the names and status of those attending. Invariably, the fewer people in attendance, the smoother the process. ALL parties and companions must agree to complete and total confidentiality of the process. On each side of the case, one person in attendance must have complete authority to represent and settle the matter. When choosing a representative, the person who has the most knowledge of the facts of the case is the best candidate to attend. There may be one or more persons who fit that description, depending on the case.
The parties will normally begin in one large room with the mediator giving an opening speech on the rules and procedures he will follow throughout the day. Each party will then be given the opportunity to give an opening statement with regard to their view and position on the case at hand. Each side will also state what they hope to accomplish during the mediation.
Frequently, the parties are separated into different rooms after position statements are given, but this depends on how well the parties are able to exchange their views and take on board the other party’s perspectives and needs. When that happens successfully, it is helpful to let the parties continue engaging. A few disputes even settle in this way. But at the point that dialogue becomes strained or an impasse is reached, the parties split up and begin financial negotiations privately.
The mediator will choose which party to talk to first. This depends largely on the individual facts of the case coupled with the strength of the personalities involved. The mediator should keep an open mind. If time is limited, it is usually more helpful to begin with the party most likely to make an opening offer in order to begin the negotiation stage. Thereafter, mediators spend the day going back and forth between rooms negotiating terms. It is often the mediator’s job to question the parties in a neutral manner that focuses on the realities of the holes and weaknesses in each party’s case in order to facilitate cooperation and decrease expectations. In almost every case, when the parties settle, it is somewhere in the middle of the two opening financial salvos.
If a mediator has done a proper job, both parties are equally unhappy with the settlement. The defendant has given up more than he or she desires, and the plaintiff has received less than what they hoped. However, both parties leave mediation relieved and happy that they no longer face more time dragging things out in court, that they had a hand in crafting an agreeable solution that provides some benefit to them, and that the matter has finally concluded.
