How the process unfolds
This article provides basic information about how mediation works. Authors, the media, and many mediation trainers love to divide up the mediation process into different steps. Whilst that may be helpful to your first introduction to mediation, the fact is that using the telephone, email and possibly Internet communication, all provide a more flexible system.
In this article, I set out two alternatives. First I deal with the most usual mediation procedure, where the mediation take place at a face-to-face mediation meeting, usually a full day, which has been booked a week or two in advance.
The second alternative is arranged and continued through telephone, email and possibly Internet meetings. There are many variations of that, so we cannot sensibly put all of them in the same pigeon hole.
If the two participants are located 200 miles apart then of course online mediation must be considered seriously. There are many other important considerations too. But what we might refer to as telephone, email or online mediation can just as easily be changed to finish with a last minute arrangement for a face-to-face meeting if you decide that would be a good idea.
This might happen for example if your German conflict-party decides he/she can fly over to the UK after all. Another example might be that you both agree there are just too many issues to deal with by email and accordingly, you would prefer to thrash out the problems at a face-to-face meeting.
This flexibility makes it difficult for me to specify particular steps. I have therefore provided what is merely an example of how things could pan out.
As I have explained in detail elsewhere, I do believe that a face-to-face meeting is the best way to achieve a satisfactory resolution. That should be your first choice. But if that’s not possible, then it’s far better to get your dispute settled by telephone and email them to abandon mediation and issue a writ.
Even if you have decided on a live mediation, there is nothing to prevent an arrangement whereby the Mediator will work with each side privately in advance of the date of the live meeting.
However, flexibility does come with a small price. It is essential that there is a proper contract in place between the Participants in the Mediator, before he starts work. Furthermore, it is impossible to estimate in advance which particular days and times the Mediator might choose to work on your dispute. The best the you can do is therefore to talk to the Mediator on the phone and agree a number of hours which you can then enter in his diary on the first available time slot.
What follows is intentionally a summary. You may also be interested in a rather more detailed explanation of what happens on the day.
Steps in a live mediation process
Every mediation using Andrew Taylor’s service starts when you provide us with very basic information about your dispute through our online form at. When you have sent the form to us – and on every occasion when you communicate with us through our website – we follow-up with a comprehensive instruction/suggestion as to what happens next.
Accordingly, Step 1 is for you to complete the form and for the Mediator to digests the basic information you have provided. That information triggers the Mediator’s telephone contact with you to answer whatever questions you have and usually, to help you consider the time you might need, documents that might help and other procedural issues. Of course, there is no reason why you should not ring the Mediator first, at a time convenient to you.
the Mediator will now 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 read any documents you have already provided. If you are in touch with solicitors, he will probably discuss your respective cases with them on the phone and may even have a meeting with both of them to thrash out what is common ground and what is not.
He will also begin to weigh up the psychology of the mediation and consider issues that must be overcome. The Mediator is particularly looking for clues as to the level of trust between the parties – or lack of it. It is common, or even usual, for the parties to be suspicious, cautious and distrustful at the beginning of the meeting. One or both of the parties may be holding back information for what they regard as “strategic” reasons.
The day of the meeting arrives. After preliminary introductions, the Mediator will make a short presentation reminding the parties of the most important points in the agreement you will have signed and explaining a little about the procedure for the day.
The Mediator will then invite each party to make a statement. We generally refer to this as your "position statement". Despite the rather demanding name, the Mediator hopes that it does not turn out to be engraved in stone but rather, a straightforward analysis of what you would like to achieve for yourself at the meeting.
After listening to what the other has said, each participant knows exactly what the other thinks the dispute is all about. The Mediator will then invite each party to ask questions. 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. That question session will usually become a discussion immediately.
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.
That shuttle process might take no longer than one hour or it might extend virtually to the end of the allotted time. The Mediator will try to spend a similar amount of time with each party at each “caucus” meeting. In practice however this is rarely possible. The Mediator’s aim is impartiality in his dealings, rather than timekeeping against the clock.
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 identify precisely what appears to have been agreed and what points remain outstanding. 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 assist the Participants in drawing a memorandum of understanding. He will explain to them that when signed and dated, their agreement will be binding in law, even if written in manuscript with few or none of the usual “legal” points.
The Mediator will not act professionally for either party in drawing the memorandum of understanding.
When the parties finally separate, there are four 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 digests what has happened during the mediation process and probably to consult with others. They resume negotiation and do reach a settlement.
- Occasionally, no agreeme nt has been reached.
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.
The Mediator will help you to decide what sort of mediation you want and how many hours of his time you want to book. The process of mediation for any business dispute is much the same however you decide to deal with it.
However, it will always be your choice to make the decision as to how long you might need to book in the Mediator’s diary. The mediation agreement provides for a situation whereby the time spent by the Mediator is greater than the time , then the Mediator will send an additional fee note for that time spent.
The Mediator will ask each party to provide a position statement. Having checked that he absolutely understands what has been set down, he will “exchange” the statements between the parties.
As the participants may have decided, the Mediator may then ask for short written responses. From that point onwards, the Mediator will prefer to deal by telephone, confidentially of course, asking the participants to commit to writing only when they wish to make an open comment or open offer.
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. 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. As we said earlier, one of the attractions of online mediation is its flexibility.
This step is exactly the same as the process for a face-to-face mediation – except that it is conducted by email and telephone. Everyone now knows the plan, so the Mediator can move the mediation forward through telephone or online communication party by party.
Talking to each party in turn, the Mediator will press each participant to justify his/her assumptions, assertions and interests as well as discussing her/his reactions to specific points raised in writing by the other of them.
This process is most successful when both the parties are available constantly over a short period of time. This could be as short a period as two hours. However, if there are reasons for a longer spraed, 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.
Dates can be more flexible for an online mediation because few arrangements are required. However, we find the process is more efficient if appointment arrangements are made by you and your conflict party rather than by the Mediator’s staff.
It is critical that what we have referred to as an online mediation moves forward as fast as possible. 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. You could agree to meet via the Internet, or a telephone conference call, or simply by continuing to use the Mediator as an intermediary.
It tends to take longer to agree the words of a final settlement because participants have the opportunity to consider precisely what they want. The Mediator will encourage both of the participants to set down in writing the main points of agreement rather than dwelling on secondary issues.
The Mediator will assist in recording the agreed terms and will incorporate them into a series of messages which commit both of the participants to their agreement. At that point it would also be possible for the participants each to instruct his/her solicitor to draw the terms agreed.
It is very easy for email and telephone negotiations to continue to drift over many days, or even weeks. It is a term of the mediation agreement that the participants will accept an additional charge for time spent by the Mediator in excess of the period originally ordered in the Mediator’s diary.