It is worth remembering that unless and until a settlement agreement is signed, everything that is said or done for the purpose of mediation is without prejudice. In addition everything you tell the mediator is confidential to him or her unless and until you say otherwise.
Stage 1: Preparation
As with any step in a dispute resolution process, proper preparation is the key to success in mediation. Preparation means that thinking in advance about the evidence you need to explain your client’s case to your opponent, the key people who should attend the mediation, and the preparation of a position statement which explains your case and the issues as you see them. You should also expect the mediator to have a confidential conversation with you in advance of the mediation day.
Stage 2: Initial private meetings
At the beginning of the day the mediator will want to meet you and your client in private to discuss the process, get the agreements signed, and what your client hopes and expect from the day. Everything discussed at these private sessions is confidential unless and until the mediator is asked to take a message or provide information to the other parties.
Stage 3: Plenary session
It is essential part of any mediation that the parties meet together at least once to tell each other, face to face, how they see the case and what they want from the process. This is often an uncomfortable process but it is important to get the dispute and the issues out in to the open. A failure to do so will lead to problems later on. It is at this point that mediation advocacy becomes critical: remember, you are not trying to persuade the mediator about your case, you are trying to persuade your opponent’s client.
Stage 4: Exploration
The next stage is exploration of the issues in private meetings, or sometimes bilateral meetings (e.g. expert and expert). This stage is important to each party can evaluate for itself the strength and weakness of its case on the various issues. It also gives the mediator an opportunity to consider possible routes to settlement. This stage moves naturally into:
Stage 5: Negotiations
Negotiation is the stage that everyone has been waiting for, and is almost always the most taxing. It is part of the culture of negotiation in this country that no-one will ever make their best bid first, and therefore the process of reaching settlement will typically involve four or more rounds of offers and counter-offers before the ‘zone of settlement’ is reached. Getting to this point is frustrating and where tempers get frayed. You are bound during this process to think or tell the mediator that the other party cannot be serious and that this has all been a waste of time. Difficult though it is to believe, they are probably saying the same of you. But it is all worth it since it leads to:
Stage 6: Settlement
An agreement in principle on the terms needed to resolve the dispute, which can then be reduced to writing and signed at which point the dispute is over.