The Process of Mediation: An Overview

Mediation is a structured, voluntary, and confidential process in which an impartial third party, the mediator (hopefully me), facilitates communication between disputing parties to help them reach a mutually acceptable resolution. The mediation process is flexible and can be adapted to suit the needs of the parties involved, but it generally follows a series of defined steps to ensure effectiveness and fairness.

If you undertake mediation training in Australia you will probably be taught about the seven steps in the process.

Preparation and Agreement to Mediate

Most of the mediations I do involve parties who are already involved in litigation (and usually in commercial disputes). They sometimes come to mediation willingly and sometimes they come as a matter of case management and sometimes they are forced to mediate against their will.

The first step in mediation is often called “intake”. This is effectively an assessment of suitability for mediation. I will sometimes (but not always) have a conference with the parties to explain the process, establish ground rules, and outline my role.

I also have a mediation agreement and a standard form confidentiality agreement which will be provided to the parties.

The mediation agreement emphasises neutrality, confidentiality, and the voluntary nature of the process. All parties must agree to participate in good faith, ensuring they are willing to explore potential resolutions.

All people present at the mediation will be asked to sign the confidentiality agreement on the day.

Setting the Framework

Once the parties agree to mediate and a place and time for mediation is set I usually ask for some information about the dispute.

Typically, I would request a copy of the pleadings in the litigation. Large volumes of affidavits and documents are rarely helpful. I also ask the parties to prepare an “interests statement”. Many lawyers will write a “position statement” cementing in place their adversarial position. It is much better if the parties to identify key issues and think about their goals for the mediation.

Opening Session

The mediation process formally begins with an opening session. I introduce myself and everyone present. I explain the structure of the session, and reiterates the principles of mediation, including neutrality, confidentiality, and the focus on collaborative problem-solving.

Each party is then invited to present their perspective on the dispute without interruption. This step allows the parties to express their concerns, feelings, and interests while giving the mediator and other participants a clearer understanding of the issues at stake.

Identifying Issues and Interests – exploration

During the opening session, the mediator works with the parties to identify the specific issues that need resolution. This agenda which is agreed to by the parties forms the framework for further discussion.

The national model of mediation provides for exploration and discussion where I will encourage the parties to speak to each other about their perspective on the agenda items. Information and views are exchanged.

This often involves separating positions (what each party says they want) from underlying interests (the reasons behind those positions). By focusing on interests rather than positions, the mediator helps the parties uncover common ground and opportunities for collaboration.

In court directed mediation t is common practice for agenda setting and exploration to be skipped in favour of early private sessions between the mediator and the parties.

Private Sessions

Private sessions with the parties are chance to recap and review where a party is at. It allows some reality testing and the opportunity for some confidential discussions about constructive options going forward. 

Although this happens in court directed mediation, the process is then one of “shuttle mediation” where I might be asked to convey offers or issues to the other party.

Generating Options – brainstorming

I enjoy this part of the process. I facilitates brainstorming sessions to explore possible solutions. Creativity and open-mindedness are encouraged at this stage, with all suggestions being considered without immediate judgment. The goal is to create a list of potential options that address the interests of all parties. I try to ensure that the discussion remains constructive and focused on problem-solving rather than blame or criticism.

This can be done with the parties present (the national model) but is often done by the mediator relaying (shuttle) offers and ideas back and forth.

Negotiating and Reaching Agreement

Once the parties have generated options, the mediator guides them in evaluating and refining these solutions. This step often involves compromise, as parties weigh the feasibility and fairness of different proposals. I work with the parties to gradually work toward a mutually acceptable agreement.

Drafting the Agreement

If the parties are represented by lawyers, the task of drafting a settlement agreement (or a deed) will fall on them. Sometimes my assistance is sought or sometimes “mechanical issues” arise that need to be resolved.

It is my practice that parties should not leave the mediation until there is a binding settlement agreement reached. When I negotiate on behalf of a party (not in my role as mediator) I will often say to the other party “there is no agreement until it’s in writing and signed by both of us”.

Overnight buyers remorse or even worse, a dispute about whether settlement has occurred at all should be avoided at all cost!

If the parties reach a resolution, I can assist in drafting a written agreement that outlines the terms. This document serves as a clear record of the commitments made and may be legally binding if the parties wish. The agreement reflects the consensus of all parties and is reviewed thoroughly to ensure clarity and mutual understanding.

Closing and Follow-Up

In the final stage, the mediator concludes the session by summarizing the outcomes and addressing any remaining concerns. If needed, the mediator may suggest follow-up sessions to monitor the implementation of the agreement or address unresolved issues. The process ends on a positive note, emphasizing the progress made and the commitment to maintaining harmony.

Conclusion

Mediation is a highly effective process for resolving disputes in a collaborative and constructive manner. By fostering open communication, promoting mutual understanding, and focusing on interests rather than positions, mediation empowers parties to create solutions tailored to their unique circumstances. Its flexibility, confidentiality, and emphasis on voluntary participation make it a preferred alternative to adversarial dispute resolution methods such as litigation.

Creative commons acknowledgment for the photograph.