How the process unfolds
The old way to conduct mediation was to sit down around a table with the mediator and start talking.
That wasted a lot of time, particularly while the mediator gathered information about the history of the dispute, and what the parties want in order to resolve the dispute.
Today, you can order your bespoke mediation process to suit your dispute, your time and of course, your wallet. Mediation can be carried out flexibly.
Just as litigation now produces terabytes of documents, so you may decide to support your case with reports, photographs, important correspondence, as well as information confidential between you and the mediator.
Bespoke mediation can also be more flexible and convenient with the advent of online communication, particularly when combined with more use of the telephone. The extent to which your mediation is conducted live or through these alternative media is a question of choice by you. If the two parties are located 200 miles apart then of course online mediation must be considered seriously. There are many other important considerations too.
Your mediator should be able to help you to decide what sort of mediation you want and how many hours of the mediator’s time you want to book. The process of mediation for any business dispute is much the same however you decide to deal with it.
Nonetheless you will find it easier if I deal separately with a live mediation on the one hand and an online mediation on the other hand.
In practice, if you have decided on a live mediation, I can tell you for sure that it will run more efficiently if you arrange for the mediator to work with both sides privately a few days in advance of the date of the live meeting.
That means your first decisions must be:
- The number of hours of the mediator’s time you need to book in.
- Whether you want your mediation to conclude with a live meeting – between three hours and a full day.
- In the alternative, if you want an online mediation, this could be by telephone, by email or by an online system. Whatever the medium, it’s a good idea to fix a date when all the parties will be available to conclude an agreement and help the mediator to record it correctly.
We will start with a live meeting. I’ve divided it into steps, for clarification, but in fact it is a single process.
Steps in a live mediation process
Today the volume of documents and the importance and cost of time show up the old way as inefficient.
So the mediator’s first work is to collect together all the information necessary for his full understanding of the background, the case of each party and their hopes and intentions.
He will also begin to weigh up the psychology of the mediation and consider issues that must be overcome. When he knows what it’s all about, he will be off to a flying start when he meets the parties.
The day of the meeting arrives. For now however, we will assume that your time booked includes either a four hour morning meeting or a full day. The mediator will probably make a short and informal presentation explaining his approach to the mediation, the process and timing, and setting out a few ground rules.
The mediator will then invite each party to make a statement. It is up to each party to express facts and feelings to the extent that he or she feels appropriate. However, a business mediation statement will most often be limited to an explanation of reasons for taking up a particular position and suggestions for settlement. (If the parties know each other well – for example the dispute is within the family, then you may wish to deal with it to a meeting at someone’s home when everyone is present and the mediator more or less acts as a referee.)
Note: one of the advantages of preliminary discussion with the mediator is that when you know in advance exactly what the mediator might expect of you, you have time to consider what to say and how best to say it. Successful mediation is about successful communication.
So, everyone now knows exactly what the dispute is all about and feels comfortable and ready to start discussing the issues.
The mediator is now likely to make an assessment of whether to proceed in the process. We sometimes refer to this as “negotiation with a referee”. For the parties to sit down in the same room with a mediator present can be an amazing incentive to understand each other’s view point.
If it seems to the mediator that the parties are happy to talk together and are making progress in this negotiation, he is unlikely to call a halt immediately. When he judges the time to be ripe he will conclude the negotiation and start the traditional “shuttle” process for which mediation is so well-known. This negotiation period could be no time at all or may extend to an hour or so.
At this next stage the mediator will speak privately to each party in turn. He will discuss any question, proposition or suggestion which he brings from the other party. He will probably run through options as to how to react to what the other party has said and will act as a sounding board for suggestions by the second party as to how he wishes to respond and what options could usefully be suggested. The mediator will continue that process until a satisfactory resolution has been more or less agreed. He will then call the parties together for a joint meeting.
At that meeting there may well follow a final period of negotiation where the mediator will isolate the most important terms and suggest specific solutions to the parties to cover those terms. He will guide the parties away from fruitless discussion of less relevant detail. The mediator is likely to take a stronger line than previously, pointing out problems that will arise should the conflict not be resolved.
In by far the majority of cases, a settlement will have been agreed. The mediator will draw a memorandum of understanding. He will encourage the parties to treat this as a legal agreement, even though it may not contain the fine detail.
The Mediator does not act professionally for either party in drawing the memorandum of understanding. His aim is to record as precisely as possible what the parties have agreed. This document will be written in simple plain English so that both parties are absolutely clear as to the points agreed.
When the parties finally separate, there are five alternatives:
- The parties simply go home and carry out the agreed terms without any further professional help.
- Each party asks his solicitor to negotiate the precise words of a full agreement covering not only the agreed terms but all of the consequential points in a document which the parties will then sign.
- There remain issues to be discussed so the parties and the mediator have agreed to continue the mediation process at the earliest possible moment. The timing depends largely on the availability of the mediator to continue while all the arguments are fresh in the minds of the parties and himself.
- Occasionally, for one reason or another there is no settlement “on the day” but over the next couple of weeks, the parties have had the opportunity to digest what has happened during the mediation process and probably to consult with others. They resume negotiation and do reach a settlement.
- Occasionally, no agreement is reached at all.
Steps in an online mediation process
Step one is pretty much the same as we described in step one for the live mediation, above. Whatever mediation process you want, your mediator has to spend time assessing whatever documents you and your conflict party produce, the history of your case, what you want to achieve through mediation and how that can best be done. Of course he does the same for each party.
No matter how far you are from agreeing, if the subject matter of your dispute is narrow, and you have no documents you want to bring to share, then you might well decide to jump straight in to an online meeting so as to deal quickly and efficiently.
The mediator will constantly have in mind what might be the most efficient process to take your dispute through to a satisfactory resolution. He will always be ready to suggest the next step.
Only the broad structure will be agreed in advance. The entire process is flexible. You can ask the mediator for an early teleconference or Internet meeting or you can leave him to talk to you individually, and privately, over a series of communications before arranging just the one meeting to pull in the strings. One of the attractions of online mediation is its flexibility.
Everyone now knows the plan, so the mediator can move the mediation forward through telephone or online communication party by party. The parties will already have instructed the mediator as to the medium they prefer to work in, how they wish to deal with telephone communication, and how frequently they wish to communicate.
Talking to each party in turn, the mediator will discuss points made in his last meeting with the other side, raise new points, refresh legal issues if a party might wish to hear and of course, discuss how best they can achieve a settlement.
The parallel situation online for the short private meetings in a live mediation is for a similar process by telephone, teleconference, Internet or email.
This process is most successful when both the parties are available constantly over a short period of time. It could be as little as half a day.
However, if there are reasons for a longer period, that does not usually present a problem. For example, a party might wish to discuss the state of the proceedings with his solicitor or with a senior colleague.
Even if a date has been fixed for an online mediation, you can still agree with the mediator to bring the meeting forward. Deferment is not a good idea. Memories fade, as does the impetus and determination to settle.
The final stage is very similar to that in a live meeting as set out above.
We believe it is preferable by far for the parties to be available for a meeting at the same time, no matter the medium in which it is arranged.
The primary purpose of the meeting is to enable the mediator to summarise points agreed, to refine them in legal terms, and to record them in terms clearly acceptable to both parties in a memorandum of understanding.
The parties should then sign that by email or online. If the agreed terms are not properly recorded and signed there is always a danger that one or both of the parties will go away and try to increase his advantage with multiple small changes.