Mediation aims to assist parties to resolve their dispute through informal and confidential discourse in which a neutral third party, a mediator, assists the parties to reach a negotiated and mutually acceptable resolution/agreement.
Role of Mediator
The mediator is impartial and has no authoritative or decision making power. Nor does the mediator have any vested interest in the outcome. The mediator’s role is to manage the process and to facilitate dialogue between the parties so that they can identify the underlying causes of their dispute and ultimately find their own resolution.
The mediator’s role is non-judgmental and non-directive. The mediator is neither judge nor arbitrator and does not adjudicate or give decisions on the rights or wrongs of the actions of the parties.
The Mediator supports the parties in identifying their issues and needs and in exploring how those needs can be addressed and how they might come to agreement.
Fundamental Principles of Mediation
The fundamental principles of mediation are that it is a voluntary process, that confidentiality applies to the process, that the mediator is and remains impartial and neutral, that the parties have the right of self-determination and decide on their own solutions rather than having a solution imposed on them. The participants will treat each other and the process with respect.
Mediation is Private + Voluntary
Mediation will be conducted in private, and will be directly between the parties concerned, with the support of the mediator, who will act as an independent facilitator. Either party may withdraw from the process at any time by notifying the mediator in writing that they wish to do so.
Mediation is a voluntary process. Mediation cannot proceed if either of the parties objects to a mediation referral. Likewise each side may withdraw consent at any stage of the process and mediation will be terminated immediately.
If the mediation process results in an agreement acceptable to both parties, the mediator will draw up a written record of the terms of the settlement for signature by the parties. A copy of the mediated settlement will be given to the parties and a copy will be retained by the mediator.
Mediation is conducted in private and is confidential to the parties and may not be disclosed.
Structure of a Mediation Session
Before the mediation session commences at all with all the parties involved, the mediator may introduce themselves to each side separately.
Where there are pre-mediation meetings, they are generally one-on-one meetings where the mediator meets separately with each party to explain the process, get an overview of the situation and ascertain the ability and willingness of each party to engage in a mediated intervention.
If the parties are to be represented during the mediation, the mediator may meet those parties who will attend in a support capacity at this stage, e.g. union representatives, colleagues.
Each side, separately and individually, are asked to tell the mediator their side of the story – what happened from their perspective to bring them here, how they feel about the circumstances surrounding the incident(s, what they think happened at the time of the incident(s) and the type of resolution they feel might be appropriate in the circumstances.
Before the mediation session commences proper, the mediator will introduce themselves and the ground rules.
He/she will outline how they propose to conduct the mediation session. This part usually only takes a few minutes and is designed to reassure the parties about the informality of the process, the confidentiality and the voluntary nature of the process and to help put them at ease.
Each side are then asked to tell the mediator their side of the story – what happened from their perspective to bring them here, how they feel about the circumstances surrounding the incident(s, what they think happened at the time of the incident(s) and the type of resolution they feel might be appropriate in the circumstances.
This dialogue is an important feature of the mediation process as it gives the parties a chance to say what happened from their point of view while the other side listens. In many cases this might be the first time the parties have spoken to each other since the alleged incident(s). In some cases the parties may never have discussed the issues face to face.
The mediator will help the parties to identify the differences between them, and often times too the similarities, and the key issues that need to be addressed.
The mediator makes no findings and cannot take a position as to whether s/he believes all or part of one side’s story or that of the other. The mediator does not give advice to either side but can point to sources of information and advice, where appropriate.
The parties are asked how they might see the dispute being resolved and, if they wish to negotiate on particular aspects of a framework agreement, the mediator will assist them.
While the parties control the content of the mediation, the mediator is responsible for the process and during the course of the mediation will work with the parties – sometimes in joint and sometimes in separate sessions.
If the basis of an agreement is reached between the parties at mediation, the mediator can proceed in one of two ways.
In cases where both sides are represented or where a simple outcome such as an apology is involved, the parties may express a preference for the Mediation Agreement to be drafted and signed on the day. In such cases, if the mediator is satisfied that both sides fully understand the terms and conditions of the mediated agreement, the mediator will facilitate the parties by preparing an agreement document for signature there and then.
Alternatively, if a complicated settlement is involved the mediator may decide to give the parties some time to digest what has been agreed. In such circumstances, the mediator will take the information away and then prepare a written record of the terms of the settlement as they see them. This draft agreement is then sent to both sides for consideration to ensure that they fully appreciate the settlement terms involved. By so doing, both sides are afforded an opportunity to think about it before they are formally asked to sign the agreement.
When each party is satisfied with the final terms of the settlement, both parties are asked to sign it. The agreement is retained by both parties and the mediator.
If agreement is not reached at mediation, the mediator will issue a formal “Non-Resolution” notice to both parties.