How and Why does Mediation Work

Both parties need to agree (however reluctantly) that mediation is worth a try. Ideally, both are positively in favour and optimistic about reaching a solution.

The parties also need to agree on a mediator. Or mediators, as co-mediation is increasingly popular amongst mediators and clients – and need not double the cost

Once the mediator is engaged, the logistics of holding the mediation can be agreed. Specifically:

• the date
• the time to be allowed (half day or whole day, usually)
• whether to mediate in person or online and if the former, then the appropriate venue (often somewhere neutral but cost of room hire can be a factor)
• the terms on which the mediation will take place
• who will attend
• what papers will be required and who will organise these – ideally the mediator will see them well in advance.
• whether time will permit the mediator to have preliminary discussions with each party and their advisers in advance, which I strongly recommend as an aid to making quicker and more effective progress on the day of the mediation.

On the day, the mediator will greet the parties separately and discuss the next steps. The parties may agree to join in an opening session which can be used to:

• make introductions
• hear the mediator describe in more detail how the process will work
• allow parties to make statements about their opening positions
• begin negotiations.

None of these steps are compulsory and the parties will agree which to adopt.

Negotiations will then get swiftly underway and the mediator will assist in those. It is likely that the parties will spend quite a bit of time (sometimes the whole mediation) apart in separate rooms. The mediator will take across any information or proposals as the parties wish. Everything else is confidential.

If the parties can agree how to resolve their issues, the terms will be written up. The mediator may help with this but it is usually a job for the parties’ legal representatives. It is best done as part of the mediation process on the day itself. No binding agreement is reached unless and until it has been signed off by each party.

The process is voluntary and not binding until a signed agreement is concluded. It is confidential and conducted on a “without prejudice” basis so that the parties can speak as freely as possible without undermining their legal positions and without fear of what they say being shared with any court or other tribunal.

The parties have committed their time and energy to the mediation. They are focussed on the idea of settling. That can help carry the day even though discussions may reach difficult points and even though they are free to leave at any time.

The structure of the process gives balance to the proceedings and reassurance to each party. The signing of the mediation agreement reinforces the concept of confidentiality in a way which other processes do not.

The process of explaining the problem and possible outcomes to a neutral third party – one who will also be hearing the other side’s views – can help to alleviate stress, open minds and clarify thinking.

The positive benefits of sharing are enhanced when a party really feels properly heard. It is a mediator’s job to give parties very good quality attention.

By hearing both parties and understanding the obstacles to settlement, the mediator may be able to steer the discussions along a helpful path and away from stalemate.

By coming to mediation the parties have taken a significant step towards resolution. They have already agreed all the logistics of the day. This begins a virtuous circle which can lead directly to settlement.