The Experience of Mediation

Mediation can be a new experience for many people. Whilst mediations have been in place for many years, for some the experience of attending a mediation may be new.

The purpose of this article is to describe the purpose of mediations and what the experience of attending a mediation can be like.

What is Mediation?

Mediation is a process where decisions can be made by the parties attending the mediation.

During mediation, parties are as fully involved as possible in the decision-making process. They are assisted in this by a mediator, who manages the process and assists the parties to reach an agreement.

Fundamentally, in a mediation, people talk and people listen. Discussions are held in an environment that is safe for everyone and that encourages and promotes effective talking and listening. Experience has demonstrated that it is through both explaining one’s side of the story and reaching an understanding of the other person’s viewpoint that parties can identify common interests and they can identify appropriate reasons for them to reach an agreement. The mediator helps the parties in this process. The mediator does not give advice or make decisions. The parties have full control over any decisions that they make.

Depending on the type of dispute and the circumstances, lawyers can be present, representing each party. The presence of lawyers is often very useful as they can explain to their clients the legal and practical outcomes of their decisions.

The process of mediation itself can be described in three parts, before, during and after the mediation meeting.

Before the Mediation

There can be exceptions, however, usually parties will meet individually with the mediator. This one-to-one meeting gives each party the opportunity of meeting the mediator and informing the mediator of relevant facts. It provides the opportunity for the mediator to ask questions and obtain any necessary background information.

Meeting the mediator before the mediation also enables the mediator to further explain the mediation process to each party and answer any of their questions.

The information that is provided to the mediator before the meeting will be kept confidential by the mediator. It is dealt with as private information and will not be disclosed by the mediator unless the party specifically agrees that the information can be disclosed.

During the Mediation

As stated above, mediation consists of a process. In general terms the process can be described as: –

1. Introduction from the mediator
2. Party’s opening statements
3. Agenda setting.
4. Discussion
5. Exploration
6. Wrap up

The mediator will provide the introduction to the meeting, which will include an acknowledgement that the information provided in the presence of the mediator will not be repeated by the mediator to any other person. Following this, each party will provide an opening statement, which will set out their side of the story. The mediator will identify issues for discussion and, in collaboration with the parties, an agenda will be set.

Once the agenda is set, the parties will discuss each item and will explore options. Many of these discussions will be conducted in the presence of each other. At times set by the mediator, private one-to-one discussions will be held between the mediator and each party. The mediator will treat the discussions held in these private meetings as confidential.

During the discussion phase, possible resolutions and alternatives will be explored. The costs and the benefits of proposals will be considered, and alternative proposals may also be considered.

The mediation will conclude either with an agreement on all or some of the matters in dispute or if it is apparent that no agreement can be reached, there will be confirmation that there is no agreement and possible next steps will be outlined by the mediator.

After the Mediation

Actions taken after the mediation will depend on the outcome. If there has been a resolution, even of only a few items, an agreement will be written out and each party will sign the agreement. Depending on the circumstances, it may be necessary for the mediator to inform a Court of the outcome; this will depend on the type of mediation and if it involves a matter that is before the Courts.

If there is no agreement, each party will need to consider their options including any legal remedies and other solutions that may be open to them. One possible solution may be to return to mediation for further attempts to achieve an agreement.

The Experience

The process is set out above. The personal experience of each party attending the mediation will differ. It has been reported, however, that many parties attending a mediation experience a range of emotions. Some of the matters that can be discussed may trouble or even cause distress to some parties. As much as possible, this distress will be limited by the mediator, but some level of discomfort is to be expected.

There can also be feelings of satisfaction, especially if an agreement is reached. Satisfaction can also be experienced simply by the expression of one’s point of view or even from an understanding that is reached of another person’s point of view.

Parties should never feel forced into making an agreement. It is the mediator’s role to make sure that there is no power imbalance during a mediation and that everyone feels as comfortable as possible with a negotiated agreement, free from feelings of coercion. Parties may not always be completely happy with an outcome, but they need to be satisfied that they have voluntarily reached any agreement.

Reaching an agreement is often about what is best in the circumstances rather than trying to settle for the full extent of what one wants. When considering options, it is often important for parties to consider the alternatives to a negotiated agreement. If there is no agreement, what then? What are the alternatives? And what consequences may flow from those alternatives? It is in considering those alternatives that the agreement often looks very reasonable and satisfactory.