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The Mediation Process
The structure of the mediation process will vary depending on the type of dispute. Generally, an agreement to Mediate will be signed at the outset and the mediator will then meet with the parties together and / or separately, over the course of one day or in sessions over a number of days or weeks. Solicitors or other advisors may attend mediation sessions if required. If agreement is reached this will be recorded and signed at the mediation, and further steps which may be required to make the agreement legally enforceable may follow.
The mediator uses their experience and training to set out a mediation process suitable to the subject matter and individuals involved. Whilst the format of the process requires flexibility depending on how matters progress, there are normally 5 steps in the mediation process.
Step 1: Pre-mediation
The parties involved in a dispute agree to an initial engagement with the mediation process and enlist the services of a mediator. A Mediation Agreement is set out between the mediator and the disputants which will address such issues as time schedule, venue, exchange of documentation, mediation fees/costs, etc.
Preparation is key to the success of the mediation process.
Step 2: Initial Meeting
The mediator decides on the form this should take – either jointly with the disputants or individually with each. The circumstances of the dispute and the relationship of the disputant parties will dictate this.
At the meeting, the mediator will set out the key elements of the mediation process, the procedure to be followed and the need for respectfulness and co-operation of the parties to the process.
Step 3: The Formatting Stage
The mediator meets with each of the disputants and gathers the relevant information and documentation to ensure that he is fully informed in all matters relevant to the dispute.
The mediator will work between the parties, exploring their individual positions, interests and needs.
The mediator builds trust with the disputants and assists each party to hear and understand what the other party is really saying.
This stage sets out the groundwork for settlement negotiations between the two parties.
Step 4: The Negotiation
The mediator moves between the parties in a caucus fashion, commencing direct and indirect negotiations.
The mediator challenges each party in relation to their stated position in order to explore any strengths or weaknesses.
The mediator uses his skill and experience to present and re-frame the issues in dispute and help the disputants resolve the issues.
Step 5: Drafting the Agreement
The disputant parties, with the assistance of the mediator, draft the resolution agreement. Once the resolution agreement is signed by the parties and witnessed, it becomes legally binding.