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How Mediation Works
How Mediation Works
The mediation is best hosted in a neutral environment and involves five different stages including the opening statement from the mediator, the opening statements of both parties, a joint discussion followed by private caucus by each party with the mediator and a closure of the mediation.
Mediators Opening Statement – The opening statement from the mediator should inform the disputing parties of their qualifications and responsibilities throughout the process. The importance of gaining the trust and confidence of both parties is very important and will facilitate open and candid communication. In addition the mediator will explain the ground rules for the process and will explain clearly the role of confidentiality in the process and what can and cannot be held in confidence. The mediators final statement should be to congratulate the parties for taking the steps to try and resolve their dispute in an amicable way and to express their own confidence in the mediation service and the high level of success that it has achieved.
Opening Statements of Both Parties – Both parties will now have their chance to state their cases without interruption. It is common for the Complainant to speak first. It is vital that both parties get to explain fully their side of the story as this process of venting is extremely therapeutic and is a vital step in the process of resolution. Opening statements can include emotive and extraneous information, but the mediator may find that this information can assist in helping both parties to understand underlying problems that may require addressing. Once the opening statements have been completed, the mediator will have a clearer understanding of how far or how close the two parties are to a resolution and will use their skill set to establish the best route forward.
Open Joint Discussion – The mediator will generally start the open joint discussion by offering a summary of the two parties opening statements and may ask of each of the parties to clarify certain points of discussion. Each open discussion is different with the mediator maintaining control of the pitch and emotive level of the discussions.
Caucus – At some point in the proceedings, either party may ask for a caucus where the mediator will move into a private room and discuss certain issues with the party. It is important that all parties are aware that anything stated in a caucus is said in the strictest of confidentiality and as a result, with consent, the mediator may not discuss anything that is said in the caucus with the other party. Caucuses have various functions besides giving both parties time to refocus, they are also used to discuss options for a settlement in a secure setting or to discuss sensitive information in a protected setting. The mediator also has the right to call a caucus if they feel that this will facilitate the process and will help them to regain control over the proceeding, particularly when tempers rise or when emotions become too much for one or more of the parties.
Closure – Closure of the mediation may or may not involve a settlement agreement. If both parties reach an impasse then as a last resort both parties can invite the Mediator to comment on the strength and weaknesses of their cases and advise on possible settlement options. This will only be done if both parties request the Mediator to do this.
At a certain point in time if no agreement has been reached, the mediator will resign to the fact that a settlement is not possible in the timeframe and that all possible options have been exhausted. The mediator should still congratulate the parties for taking the time to attempt conciliation and that if they are willing to continue the process of mediation that they could take a little time to reflect and perhaps make another appointment. In the event that a settlement is reached, the parties' legal representatives will write up a settlement agreement, all parties will then sign it and it will represent a binding contract.
Understanding the mediation process as well as assessing both the advantages and the disadvantages will help you to determine if this ADR is the right conflict resolution procedure for you and your conflict issues.