Mediation Day
| Author | Stephen Walker/David Smith |
| Pages | 139-160 |
9.1 Introduction
In this chapter, we summarise the timetable of a typical mediation showing the main stages. This is based on an 8-hour two-party mediation. We then comment on each of the stages.
9.2 Mediation stages and timetable
Table 9.1 Mediation stages and timetable
Stage Activity Time
1 Arrival 9.00/9.15
2 Private chats with the mediator 9.15–10.00
3 Mediation starts with joint opening session 10.00–10.30
4 Joint opening session finishes; private sessions start 10.30–12.30
5 First exchange of offers 12.30–13.00
6 Lunch
7 Second exchange of offers 14.00–14.15
8
9
10
11
12
13
14
15
Private sessions continue
Low point
14.15–15.30
15.30–16.00
Review session
Further private sessions including face-to-face sessions
16.00–17.00
17.00–17.30
17.00–17.30
17.30–18.30
18.30–18.45
18.45
The three distinct phases of mediations are discussed in Chapter 1, para 1.1.1. Most mediation days follow the stages set out in Table 9.1.
Offers accepted
Drafting agreement
Signature and making copy documents
Farewells
140 Advising and Representing Clients at Mediation
Please note that Table 9.1 is only an example and it is not in any way prescriptive. Some mediations get off to a slower or quicker start than described, and some mediators follow a different pattern. For example, they prolong the joint opening session or do not have one at all. Some mediators do not encourage the parties to exchange offers but prefer the traditional sequential offer and counter-offer approach. On timing, some mediators do not encourage or even solicit offers until well past lunch, preferring to prolong the exploration phase of the mediation in order to avoid the perceived dangers of premature offers. In fact, the best mediators will use all of the above timings and styles, selecting those they think are most likely to achieve a settlement between the parties. These points are discussed below.
Obviously, the tempo of mediations even if following this general pattern can vary. The time splits are indicative, but they are based on a large number of mediations.
9.2.1 Stage 1: Arrival
The parties and their representatives arrive at the mediation venue. Sometimes the venue is the offices or chambers of one party’s legal representatives. Quite often a third-party venue such as the International Dispute Resolution Centre is used.
Things to avoid
It is essential to avoid the following two things:
1. Being late: it is bad enough if one of the parties is late; it is terrible if the representatives are late. It sets the wrong mood. The punctual party will think that the tardy party is being deliberately obstructive, incompetent or disrespectful. Lateness never sets a positive tone. Arrive at least 30 minutes before the mediation is due to start. Make sure that the client knows where to go. The Inns of Court, for example, can be baffling for the first timer.
2. Confusion in the waiting area: it can be embarrassing if the parties all arrive at the same time and do not know what to do. Should they ignore each other? Should they introduce themselves and shake hands? The same situation can arise at court hearings, but there it is easier to walk away and avoid each other. In the worst case scenario, the mediation begins in a negative way in the waiting area with the parties having a shouting match and threatening to walk out; sometimes they do actually walk out. Instead, representatives should arrive really early and be shown the room allocated for the day. They can then be available to greet their clients on their arrival and
take them into the room without any milling about in reception. They will also have time to have a final pep talk with their clients before the mediation gets underway.
Sometimes, the parties are asked to arrive at different times in an attempt to avoid difficulties. Representatives and clients should keep to the timetable.
Meeting the mediator
If the mediator is also waiting in the reception area, it is usually advisable not to introduce yourself even if they are known to you from a previous occasion. Wait until the mediator makes an approach. This prevents any impression being received by the other side that you are trying to win over the mediator. Remember that some parties and their representatives can be exquisitely sensitive to the suggestion that a mediator might be biased, and so it is best to avoid a personal discussion with the mediator that refers to previous dealings between you that might reinforce that concern.
9.2.2 Stage 2: Private chats with the mediator
Signing the mediation agreement
The mediator will introduce themselves to the teams in their rooms. They will want to make sure that the mediation agreement has been signed by all those attending even if they are not representatives or parties. This is essential in order to ensure that all those attending are contractually bound to each other by the confidentiality provisions in the mediation agreement, including counsel. Some counsel have been known to query whether it is necessary for them, as barristers, to sign. It is necessary, and many mediation appointing bodies now expressly insist on this. Solicitors should instruct them to sign. A similar problem sometimes occurs with friends or colleagues who are attending for moral support, and they must also be required to sign up to the confidentiality provisions in the agreement.
Raising further issues
This is also an opportunity for representatives and their clients to raise any points with the mediator before the mediation starts. For example, they can explain any recent developments in the case or any concerns they may have about the authority of the other side to settle. Good mediators will invite any such comments and also make sure that the clients understand that the purpose of the day is to try to settle, and that they understand what the mediation agreement says.
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Mediation agreement
Mediators are frequently surprised at how often clients have never seen the mediation agreement before the day, let alone had it explained to them. It is vital that clients understand what they are signing, and it is much better if representatives take their clients through the agreement beforehand. Often, the reason why representatives do not do this is because of the short timeline to prepare for the mediation, but this step should not be overlooked, even in the most time-pressured mediation preparations. A negative mood is created if the mediator produces an unexpected agreement at the start of the day and insists on it being signed. At the very least, this wastes valuable time at the start of the day and, at worst, it causes a loss in momentum at a time when people normally have the most energy and undermines the party’s trust in the mediator and the representatives.
A checklist of the key terms of mediation agreements is discussed in Chapter 5, para 5.10.1.
Seeking more time
If more time is needed before the mediation formally starts, representatives should ask for it. Most mediators will be very accommodating if the delay is going to lead to progress in settlement or will offer to assist in resolving any outstanding issues. However, it is important not to allow client nerves or uncertainty to get in the way of getting started. There will be lots of opportunity during the mediation day to discuss matters further.
Conferences with counsel
Quite often, one of the parties will want to have a conference with counsel before the mediation gets underway. It is usual practice for such pre-mediation conferences to have taken place before the actual mediation day, but this is not always possible. Do not feel rushed. Take as much time as is needed. If the other side are asking for more time, then agree to it. The extra time can always be profitably used.
Extended delays
If there is a prolonged delay, the mediator may start discussing the case and issues arising with whichever party is ready. There is nothing wrong with this and the opportunity to get started and have the mediator’s full attention should be welcomed.
Representatives meetings
Some mediators may ask for a meeting with both sides’ legal representatives before the mediation formally starts. This is most common where the mediation is running to a tight time-frame. In this case, the mediator is usually trying to ensure that the legal representatives are supportive of the process and to recruit them to assist in moving towards settlement.
9.2.3 Stage 3: Joint opening session
Most mediators like to start the mediation day with a joint opening session. This is also called a plenary session. All the parties and their representatives meet in the same room with the mediator. The mediator can set the mood by emphasising that the purpose of the day is to try to settle the dispute. Each mediator sets the scene in their own way.
Mediator’s statement
Mediators usually start a joint opening session with an opening statement. They use this to run through the ground rules for the day. Different mediators have different ways of doing this. Mediators’ introductions will include most, if not all, of these points in roughly this order:
• Introduce themselves: some mediators go through their CV to help them establish status and authority.
• Ask the parties to introduce themselves: clients should be primed about this so that they are not flustered. Their name and position is all that is required, for example, ‘I am Sandra Bloggs, John’s wife’, or ‘I am Brian Snooks, Contracts Manager’.
• Signature of the agreement: if the mediation agreement has not already been signed, the mediator circulates it for signature. This is an inefficient use of time and is best dealt with beforehand.
Key explanations
Mediators usually use their opening statement to remind the parties of the following points:
• The purpose of mediation is to settle, and they are there to help the parties to do so; they are not a judge or...
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