Mediation is a process in which the parties agree to appoint a third party neutral to help them negotiate a resolution to a dispute which has arisen between them. Mediations may take place between two parties or between multiple parties with a common problem.
Mediation takes place when two or more parties have a dispute they have been unable to resolve. Mediation is controlled negotiation. It is controlled because the parties negotiate with the assistance of an independent neutral, the mediator. The mediator’s role is not to judge or determine issues in dispute or to impose a solution upon the parties. It is simply to facilitate the parties’ discussions. Usually a consensual process, the parties are typically willing participants – though it can be court mandated.
A mediator is an independent neutral whose role is to help the parties communicate with each other. This is done by keeping control of the way in which the parties engage during the course of the mediation process.
It is not a mediator’s place to ensure that a settlement is achieved. There are (rare) occasions on which one or both parties would be better advised not to compromise. A mediator should not coerce one party into a compromise that party will later regret. Nor should (s)he inhibit parties from entering into a compromise simply because (s)he believes to it be unfair: if the parties are happy, then the solution is likely to stick. A mediator should ensure that both parties consider fully the potential gains and losses from either compromising or continuing the dispute.
Mediators take different approaches to this apparently simple task. There are two basic schools of mediation, facilitative and evaluative. Facilitative mediators approach their task from the perspective that they should express no view on the merits of the parties’ respective positions on any issue, but simply assist them is finding ways to move towards each other where there are differences. Evaluative mediators take a different tack. They identify issues on which they consider the parties require assistance and point out to them the merits and demerits of their respective positions. Evaluative mediators may indicate to the parties how they consider particular issues would be decided if the dispute were litigated.
The facilitative model is the more widely adopted, although in practice all skilled mediators employ techniques from both schools in trying to help the parties see the full consequences of their choices.
The neutrality of the mediator is his or her raison d’être. It is this which enables the mediator to gain the trust of both parties and help them to discuss and consider openly and frankly the advantages and disadvantages of any particular course of action. A mediator who loses his neutrality has failed both himself and the disputants.
Mediation is a process in which the parties agree to appoint a third party neutral to help them negotiate a resolution to a dispute which has arisen between them. Mediations may take place between two parties or between multiple parties with a common problem.
There is no set form for a mediation. It is extremely flexible. There are no rules for mediating save that all good mediators operate on the principle that they should not make the dispute worse: in other words the only rule is DO NO HARM. In practice, however, mediations usually follow a fairly set pattern. Most professional mediators will have been trained to follow this pattern because it works and gives the parties the greatest opportunity to express their views, wants and concerns.
Apart from the obvious reason that the court in a litigious dispute may require the parties to try and resolve their conflict by mediation, there are many sound reasons why mediation is a process which is nearly always useful. First, it provides a forum for the parties to explore the possibility of settlement quickly and efficiently. Second, it enables them to put their respective points of view to each other in controlled circumstances. Third, it enables settlements which may go far beyond the boundaries of the legal issues in dispute: a mediator may be able to highlight ways in which the parties can co-operate or assist each other to provide mutual benefits which a legal resolution cannot. Mediation frequently produces results which are more useful to the parties than a legal judgment in their favour.
Because mediation is a process of negotiation, it can end only with an agreement between the parties or a failure to agree. The principal advantage of a mediation over face to face negotiation is that t he parties are generally better able to communicate their wishes and concerns to the other parties when a neutral is present to keep everyone’s feelings, expectations and behaviour under control. It is principally for this reason that disputes which the parties have been unable to resolve by themselves are frequently capable of being resolved in mediation.
The first step is that the parties must decide to mediate. This usually occurs in the context of ongoing litigation but it is becoming more common for parties who have a dispute which has not yet become litigious to agree that they should appoint a mediate to see if the dispute can be resolved with his assistance. Often both parties will want to mediate in any event and the agreement that this should happen makes itself. Sometimes, however, one party is more interested in mediation than the other. If there are more than two parties involved, reaching agreement between all that there should be a mediation can take some time and effort. You will need all your negotiation skills to persuade an opponent who is uninterested or unwilling to mediate that it is a good idea.
The mediator’s appointment is usually made by agreement. Each side will have a view on the kind of mediator they want. Commonly the parties propose two or three possible candidates each and a selection is made between them. Sometimes, the same name will appear on both lists. In such cases the choice is easy.
After the mediator has been appointed, the process is usually controlled by him. Mediators have standard form agreements which they will expect the parties to agree, perhaps with minor modifications to suit the particular circumstances. My standard form is [HERE].
The mediation agreement will fix the date and place of the mediation and set out the documents with which the mediator will expect to be provided before the mediation meeting. It is a common misconception that the mediation is what happens on the day the parties meet in the mediator’s presence. Although the meeting is crucial, the reality is that the mediation starts from the moment the mediation agreement is signed. The agreement will generally provide that the parties furnish a written mediation statement before the meeting. One purpose of this is to acquaint the mediator with the nature of the dispute. This, whilst important, is secondary to the core point of the mediation statement: it is to persuade the opposition to listen to and understand your position. How the statement presents your position will affect how the other party approaches the meeting.
Most mediations take place over a relatively short timetable. Generally mediation statements and supporting documentation are exchanged and delivered to the mediator in the days before the meeting. The meeting itself will usually occupy only one day, although complex cases or ones where there are difficult and detailed negotiations may last longer. Very complex multi-party mediations can take much longer but they are rare, at least in this country. Also rarely, the parties may wish to communicate with the mediator in confidence before the mediation meeting facts which they do not wish the opposing party to know. Mediation agreements nearly always permit this although it is unusual for such communications to be of benefit.
Mediators vary widely in how they conduct the mediation meeting. What is set out here is how I conduct mediations which is drawn closely from the style in which I was trained. Each of the steps in the process may be more or less useful. Some of the steps can be omitted altogether in appropriate cases. Mediators need to remain flexible in the way in which they conduct the process or it can turn into little more than shuttle diplomacy with the parties sitting in separate rooms and the mediator moving from one to the other.
The basic steps or stages in the process are as follows:
The nature of each step is considered below. It should be understood that these steps are not formal. There is no requirement that a mediator follow each of them. Indeed, almost all mediations proceed with the parties at some stage in private rooms, one talking to the mediator (or considering particular issues) and the other waiting to hear the outcome of those discussions. After discussing the nature of each of the steps, there is a short explanation of the process of “caucusing” or meeting with the mediator in private session and how this is employed.
During this stage the mediator introduces everyone, explains to the parties how the process will work, where the facilities are and how he expects to conduct the mediation. The purposes of this stage are to set out the ground rules by which the remainder of the mediation will work, establish a working rapport with the parties and encourage them to participate openly and positively, ensure that everyone is confident that they understand what they are doing and deal with preliminary matters.
The mediator will explain to the parties that he is not a judge or arbitrator and cannot impose a settlement on them. He is there to help them reach a settlement between themselves.
Simple things like how the parties are to address each other, where their individual rooms are, what arrangements have been made for refreshments and lunch are explained at this stage. This gives an opportunity for the parties to settle in to the mediation process and feel comfortable that they know what to expect. Mediators usually explain the nature of their role, whether they will treat information given to them by each party as confidential or open in the absence of an indication as to its nature and outline the steps which are to follow. Amongst the basic areas which it is helpful to cover are that the mediator will act as chairman when in open session and expects only one person to speak at a time. Also, pejorative remarks and bad language are not permitted. These stipulations may seem remarkably basic but, unless expressed, I have found that they are often broken.
In order to encourage the parties to be candid, the mediator will usually remind them that the process is confidential and without prejudice, that no information revealed or notes taken at the mediation may subsequently be used. Finally, a wise mediator will ensure that both parties are represented by someone who has authority to settle the dispute. Experience tells us that failure to ensure that this is so is a common cause of mediations coming unstuck.
Finally, the mediator will tell the parties that he may terminate the mediation if he concludes that it is no longer worthwhile to continue. He will also explain to them that they are free to leave at any stage if they wish. If they do want to leave, he will ask them to give him an opportunity to talk to them first to see whether he can persuade them to stay. This step ensures that the parties appreciate that the mediation process is consensual and will only continue so long as progress is being made.
Opening statements are very important and most mediators encourage the parties to speak for themselves as well as having a statement made by their lawyer. The parties are often, at least initially, unwilling to do this. Indeed, it is not uncommon for the lawyers to suggest dispensing with opening statements as the parties are already familiar with each other’s positions. To succumb to such suggestions is unwise. Mediatiors often describe this stage of the process as “storytelling” and it is an essential preliminary step.
The purpose of the opening statements it to allow the parties not only to tell the opposition what their position is but why they feel the way they do. That is why at least a short statement from the parties’ representatives can often be very helpful. Frequently, although one party knows the other’s commercial position, he is unaware of the underlying feelings which are driving that party. This is as true in commercial disputes as in personal ones. For example, a party may feel that, whatever the legal merits, the other side has acted unfairly or unreasonably or has lied about some aspect of the dispute. Whilst such matters may well be legally irrelevant they often have a profound effect on a party’s perception of what is an appropriate settlement. It is not unusual for the opposing party to appreciate how hurt or wronged his opponent feels (and why) only as a result of the opening statements. The opponent has an opportunity to respond with an explanation or an apology and the mediator can, if necessary, encourage this. The venting of feelings and consequent reduction of tension between the parties is a great aid to effective discussion.
A second aspect of the opening statements is to allow the parties to explain what they are looking for from a resolution of the dispute. This too is important as it lays the ground for the subsequent discussions.
During the opening statements the mediator will usually simply listen. In some circumstances some mediators will ask the parties questions to draw out their views. This is generally of less help in commercial disputes than personal ones where the parties may be unused to presenting their positions and need encouragement to say their piece. It can, however, assist in commercial disputes where there is “an elephant in the room” which nobody is willing to mention but which is providing a block to constructive discussion.
Following the opening statements the mediator will seek to summarise what the parties have said, highlighting points of common ground and interest and identifying areas of difference. By doing this the mediator shows the parties that he has heard, understood and appreciated what they have said, what their concerns are and what they want from a resolution.
By this process each party hears the other side’s perspective repeated from the mediator’s understanding. The mediator will then ask the parties whether his summary of their position and concerns is accurate or if they wish to add or correct anything at this point. At this point there is an opportunity for the parties to ask questions, seek clarifications or make corrections. It also gives the mediator the opportunity to identify areas where each party can acknowledge an understanding and appreciation of the opposing party’s position and feelings.
As a result of this process the mediator should be in a position, with the parties’ help, to identify and set out the issues which have to be resolved in order to settle the dispute. Some mediators like to do this using a flipchart or whiteboard so that they can write out where everyone can see what the issues are. Others prefer to make notes and to encourage each party to do so with them. In either case the mediator is endeavouring to ensure that all the issues the parties have raised have been identified so that subsequent discussions address all the points in issue.
The mediator will seek to frame the issues in a way which looks to their resolution. For example, in a patent dispute, the patentee will often want say he wants an injunction. The mediator may frame this as the patentee wishing to obtain the value or benefit of his patent rights. This allows the possibility of licence or supply arrangements which may be entirely suitable for the parties’ commercial needs but would otherwise not necessarily be addressed. This approach also minimises the ability of the parties to give a direct answer to the issue – I will or will not agree to that – rather than looking for mechanisms for achieving an outcome which meets the issue.
This stage of the mediation is greatly emphasised in formal mediation training. It involves the parties looking at each issue and suggesting ways in which it could be met. The mediator will make clear that he wants the parties to think creatively and to suggest anything and everything which occurs to them whether they think it realistic or practical or not. He will also explain that at this stage no criticism of the suitability of the options should be made. Some mediators will themselves participate vigorously in this process to encourage the parties to think of ideas which they have not previous considered. Others prefer to allow the parties to come up with all the possibilities themselves. Both approaches have advantages and disadvantages and which is used is very much a matter of the mediator’s personal style.
The object of this stage of the process is to encourage the parties to put into the open all the settlement possibilities which they can think of so that those possibilities can form the basis of subsequent discussions. In many disputes, however, the parties already know what kinds of settlement options they are interested in and this stage of the mediation can be shortened or rolled up into the previous stage where the issues are identified.
It is perhaps at this point that the flexibility of the mediation process needs to be most emphasised. In the conventional or formal structure of a mediation, the ideas which lead to creative resolution of disputes should be drawn out at this stage. However, in a complex dispute or a long-running one where the parties have entrenched views this is not always possible. The parties may need to go through the stage of considering conventional resolutions within the established legal framework first in order to reject them and reach a collective appreciation that something more is required. Only then will they move to considering alternatives which enable them to meet their respective requirements.
From the ideas thrown up by the brainstorming the mediator then seeks to help the parties identify those which meet their needs and will lead to a workable solution. It is here that each party can look to see how the options relate to their BATNA and which is better for them.
Mediators will often use techniques drawn from principled negotiation at this stage to make the parties look realistically at their alternatives and how different options can be combined or adapted to provide an overall resolution. They will make the parties focus on the consequences of particular steps and ask them to consider how they will deal with those consequences. For example, in this country the effect of costs is an important one and most mediators will make the parties think about the time and cost involved in continuing to litigate the dispute as well as the effect of the result when considering how that stacks up as an alternative to settlement.
Once the parties have reached agreement in principle about the adoption of a set of options which meets all their needs this has to be formalised into a written settlement document. The mediator will not normally participate directly in this process where lawyers are present for the parties. They are acting on their legal advice and the mediator’s role is limited to supervising the process and not to assist with the drafting.
This stage can take a considerable time but it is important that the parties are satisfied that they have reached a workable agreement which will avoid future disputes or the mediation has failed in its objective.
This is an American term for private meetings between one party and the mediator during the course of the mediation. Mediators vary widely in how they use caucuses. The mediator will explain when setting out the process that he may at any time suggest that the parties go into caucus if he thinks it will be beneficial. Some mediators call a private session after the opening statements and summary in order to discuss with each party separately their options.
However, a more common approach is to have some brainstorming or discussion of options in open session first, breaking up into private sessions only when it becomes clear to the mediator that he needs to ask one or both parties questions which they will not want to answer while the other party is listening. The most obvious point at which this is necessary is where the mediator wishes to ask one party to focus on the alteratives to negotiated settlement or to consider how a settlement compares with his BATNA.
There is no formal structure. Mediators will frequently have several private sessions with each party during the course of the mediation whilst they relay between the parties the outcome of their discussions. The mediator may later decide that it would be helpful if what has been said in private session is presented to the other party directly in open session. This may be useful, for example, where the mediator wants one party to understand why the other feels so strongly about a particular point which may not objectively appear to be of great importance.
At all times the mediator’s object is to keep the parties talking constructively to each other so that progress is made towards a mutually acceptable compromise.
Amost everyone thinks they know how to go about getting what they want from someone else. That is of course the fundamental objective of negotiation. But most of us get it wrong. There are certain types of recognisable negotiating techniques which can be seen in almost all areas of life, from family and other personal disputes through complex commercial deals to diplomacy and war.
The most common negotiation technique is demand led negotiation. Most people approach a negotiation by making demands based simply on what they want; or, if they are a little more sophisticated and endeavour to take into account their negotiating partner, what they think they will get away with. Usually, people build in to their initial demands things they don’t really want or need that they intend to give away in order to appear to be being reasonable and making concessions. This never works: it simply encourages the other negotiating party to chip away at their demands. The result is that, when they reach the point at which they cannot or will not back down, they look intransigent. That of course is precisely when they need the other party to compromise but have encouraged them to keep chipping away. The result is nearly always disastrous. Either the parties cannot agree at all; or, if they do, at least one (and probably both) has obtained much poorer terms than they would have if their negotiating had been more skilful. As a consequence, agreements reached after demand led negotiations frequently break down so that the parties have to start all over again trying to reach an agreement that will work. We see this kind of approach frequently played out in public in negotiations between trade unions and employers.
Sometimes parties do not even know what they want and make it up as they go along. This is a particularly dangerous form of demand led negotiation because it means that they are ready to give way on demands they didn’t really want when challenged. This simply encourages the other party to keep challenging the demands.
A variation on demand based negotiation is positional negotiation, where a party states his position and insists that that is what he wants and nothing less will do. Positional negotiators nearly always end up undermining themselves and their credibility by making concessions. Once they do, it is apparent that the initial position was just a negotiating stance: the opposing negotiator knows that any of the initial demands are in fact up for grabs. Positional negotiation, a very traditional technique, is a terrible way to negotiate. Even if it results in a settlement, the parties will have become irritated and untrusting of each other and the settlement is more likely to break down.
It doesn’t always have to be like this. There is a much better way to negotiate. It is called principled negotiation.
The underlying philosophy of principled negotiation is very simple. A principled negotiator does not make demands and then sit back and cross his or her arms awaiting a response. A principled negotiator seeks to explain what he or she wants and why. Why involves setting out the relevant facts and explaining why they lead to demand being made. By doing so the principled negotiator justifies the demand so that the other party understands why it is being made. In order effectively to challenge the demand, the other party has to challenge the reason for it and thus to address the facts on which the demand is based. If those facts cannot readily be challenged and if the reasons why those facts support the demand are sound, it becomes difficult not to give way to the demand. If the opposite party wants to reduce or adjust the demand, he or she is forced to find another way round the facts and reasons which allows the variation.
The result is that in a principled negotiation not only do the parties better understand each other’s needs, but they are able to communicate more effectively about how their respective needs may be met and what each is able to do for the other to address them.
Perhaps the most powerful aspect of principled negotiation is that a principled negotiator can in practice make the other party play ball. If you are faced with a principled negotiator who has explained and justified his or her demands, you have little alternative between giving way or engaging with the explanation and justification
I want my daughter to do her homework early so that it doesn’t interfere with a planned for a night out for the whole family at the theatre on Friday. I therefore demand that she does it today. Of course, that demand is unnecessary because it is only Tuesday and she could do it later. She doesn’t want to do it today and resists. She says she can do it anytime before the trip and will do it when she is good and ready. I threaten her with not being allowed to go unless her homework is done. She is irritated. I concede that she can do it tomorrow. She triumphantly says that I have just proved that my demand was unreasonable but she will do the homework on Thursday. We agree, grumpily, on this. On Thursday, of course, she is too busy to do her homework and it is left undone. That wasn’t very successful. We had a settlement but it failed to achieve its objective.
Now let’s apply principled negotiation to the same scenario. I explain the problem to my daughter. I point out to her that it would be best if her homework were done before we go out on Friday and that I would like her to work out how to fit it in. I point out that I will be unhappy if her homework is not done and may be forced to leave her behind so that she can do the homework instead. She, naturally resists, but after some discussion, concedes that she can find the time to do the homework. We discuss what else she has to do on the intervening evenings and plan her timetable. We agree that she can do the homework tomorrow after dinner. At dinner tomorrow I remind her that it is do be done and she does it. No-one is irritable or grumpy and the homework is done in good time for the theatre trip.
What was the difference between those two approaches. In the first I made a demand, unjustified by what I wanted to achieve and unsurprisingly unacceptable to my daughter. In the second I explained what I wanted and why and I encouraged her to contribute to the resolution of the problem to our mutual advantage. That is principled negotiation. You do not make unwarranted or unexplained demands. You work out what you are trying to achieve and you present a reasoned case to your opposite number. With luck they will respond in like fashion. But even if they don’t technique still works. Because, when you justify your claims, your opponent has to respond to the justification, either by making concessions or by demonstrating that the justification is wrong. In either case, there is real communication and negotiation.
The onset of the Covid-19 pandemic has made physical mediation impractical. However, mediations can be conducted successfully remotely using one of the video conferencing platforms. Michael uses Zoom and has conducted and participated in a number of remote mediations on this platform. Zoom mediations are able to mimic the format of physical mediations very closely. The parties have their own break out rooms and there is a central room for the open sessions. The mediator is able to control who goes to which room and to give the participants space and time to discuss things on their own when they need to.
Michael has found that remote mediation works extremely well. It has the advantage that participants can contribute and attend from distant locations very easily. Michael has used this facility to allow participants from across North America to attend mediations between parties in the UK and Europe. He is happy to demonstrate the operation of Zoom to anyone who is wondering about taking part in a remote mediation to show you how it works in practice.
Whether consensual or court mandated, mediation is an essential process for reaching the best possible outcome in complicated disputes. In such situations, the experience and expertise of the mediator is crucial.
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