Mediation is often perceived as a single session where people involved in a dispute sit face to face to discuss and resolve the dispute in the presence of a neutral mediator. While the picture itself is not so wrong, it only roughly represents a joint session in progress. In reality, the process of mediation begins much earlier.
The commencement of mediation
Mediation commences with the decision to go for mediation! This decision may either be voluntary or court-ordered. When it is court-ordered, the disputing persons have no other option than to comply with it. Alternatively, a person involved in a dispute who is aware of the benefits of mediation may voluntarily decide to undergo mediation. In such cases, they need to convince the other person to agree to mediation. This may be a difficult process that requires some persuasion, and the help of a mediator may be enlisted to get everyone on board.
In commercial disputes, mediation may be suggested in the contract as the first option for dispute resolution, making it binding on all. Again the help of a mediation firm may be enlisted to agree the mediator to be used. This avoids “mediator shopping” or arguments about who is the best mediator.
The initial consultation process
Prior to the joint session, it is a critical part of mediation that the people involved in the mediation meet individually and separately with the mediator so the mediator learns the different perspectives of everyone involved. It also provides the mediator the opportunity to find out what may hinder the mediation process and decide if everyone involved has the willingness to ensure that the mediation will be effective.
During this, the mediator begins to understand the dispute, identify the “elephant in the room” and foresee any potential hurdles to the mediation process. The mediator works with both sides to decide the time and venue for mediation, the individuals required to attend the mediation sessions and necessary documents that can help during the session. Lawyers are encouraged to be involved in the joint mediation sessions for consultation, however the people will speak for themselves at the joint session. The lawyers can usefully be identifying the strengths and weaknesses of each persons position at law to communicate to all at the joint session. They can also help to legally formalise the outcomes reached at mediation.
The initial consultation sessions help people to identify their interests and expectations. They gain an understanding of the mediation process and get to know what is expected of them at mediation. As a result, the joint mediation session takes less time and has a high chance of being successful.
When does mediation end?
A mediation may end before the joint session if the mediator does not consider that it is an appropriate case for mediation. For example, it would not be worthwhile going ahead with a joint session if anyone involved in the joint session does not have the authority to resolve the topic in hand or the genuine willingness to settle the conflict, complaint or dispute.
In the joint session itself the parties may decide to hold subsequent sessions based on the progress made in the first session. This might be for example, because the parties are 99% of the way to all matters being agreed and time constraints prevent the last topics being resolved at that time. The mediation there fore continues at a subsequent joint session.
A mediation can end in two ways:
- The mediation ends in an agreement based on a mutually acceptable resolution and outcome. The written agreement encapsulates future actions that people involved in the dispute agree to take, in order to end the dispute.
- The mediation ends without an agreement or outcome about all issues. This happens when the people involved in the dispute are not willing to negotiate due to which the mediator feels that further discussions will not be fruitful, leading to the decision to close the mediation. More often than not though the dispute is clarified and the number of topics in disagreement reduced.
Generally, mediation has a high success rate with almost 85% cases being resolved successfully. Mediation is suitable for resolving disputes in any area – personal, business, legal or commercial. Giving due importance to the pre-mediation phases and displaying a collaborative spirit during the mediation sessions will ensure quick and fair resolution of disputes.