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The Structure of a Mediation Session

03/05/18

If considering mediation as a way to resolve a dispute, you may be interested to understand the way in which a mediation session may unfold.

Mediations can of course take on a life of their own, particularly depending upon the parties involved and the nature of the dispute, however, for the most part, what is set out below is the core pattern of a structured mediation session.

1. Opening Statement
Mediations will be held in a neutral place at a time convenient to the parties. It is usual for a mediation session to last for either a half day or for a whole day mediation to take place. Generally, if you have legal advisers, your Solicitor will advise of what period of time will be sensible in your circumstances, or indeed the mediator will.

The mediator will always open the session, with both parties in the room, in order that the parties can confirm that they are present at the mediation in order to seek to reach a settlement. This is save for if there is a particularly acrimonious situation where the parties do not want to be in the room. It is however considered helpful to have an open session. The initial meeting sets the tone of the day and the mediator will explain what will happen during the course of the day and importantly, the fact that the mediation process is entirely confidential.

At the opening session, it is possible for each party to speak and to set out the basis of their position, while everybody else listens. This is not meant to be a time for the parties to engage in debate but rather uninterrupted time in order to set the scene. The mediator may interject and ask questions at this time, if he feels it would be helpful to do so.

2. Open Sessions or Separate Meetings
Following the opening session, the mediation can then take two forms. It can be progressed during the course of an open meeting with all parties present and if that is the case, then the mediator will keep the discussion in bounds, making sure that each person is heard and each is protected. It is not a mediator’s role to try to determine the truth or who was at fault. Rather, the mediator will be present in order to listen for what matters to people and to zone in on possible areas of agreement. It may be the case that such a session will bring a "turning point" of reconciliation.

The alternative to continuing in an open session or indeed what can be interspersed with open sessions are separate meetings where the mediator can “shuttle” between the parties. These can occur at any time during the mediation and have many uses:

  • checking out a person’s concerns;
  • confronting unhelpful behaviour; or
  • helping people think through their options and considering the reality of the situation.

The benefits of separate meetings are that the parties can speak to the mediator on a confidential basis and the mediator will only relay to the other party, information that the party wishes to be taken to the other party.

Often a mediation will progress by way of a number of separate meetings, where the mediator will shuttle between the parties. This shuttling of the mediator, may result in settlement proposals being put forward and/or the narrowing of the issues between the parties.

3. Building the Agreement
The discussions will naturally shift towards the future, rather than the parties becoming embroiled in what happened in the past. The parties, in considering resolution, need to establish what were happen going forward and to agree on an agenda of issues which need resolution.

The parties will then work through the issues and generate a number of ideas, weighing, adjusting and testing the alternatives to build an agreement that is workable and a mutually satisfactory solution to the issue.

It is essential, in this respect, that there are people present at the mediation, who can make decisions on behalf of the parties

4. Writing the Agreement
On the basis that the parties to the mediation are able to settle their differences, then the parties and the legal representatives will become involved in drawing up a formal agreement which will contain the decisions and the settlement reached. In the event that the mediation is taking part during the course of Court proceedings, this will take the format of a particular Order. On the basis that there is agreement, then everyone present will sign and take a copy home.

The mediator will not keep copies of the papers involved in the mediation. The will let the parties continue in dealing with the matter alongside their legal advisers and hopefully in the knowledge that the mediation has been a successful process.

Should you require our mediation services or require any further information concerning this article, please do hesitate to contact Fiona Colwell who will be delighted to assist.