MEDIATION

What Is Mediation?

1.A neutral third party(mediator)helps two or more parties to solve a dispute or conflict by facilitating their negotiations.

1.Michael Noone,in Mediation,outlines four principal characteristics:a. Accessibleb. Voluntaryc. Confidentiald. Facilitative

Facilitative and evaluative styles of mediation1. Mediator’s qualification,training,knowledge

and experience2. Some mediator are more evaluative of the

subject matter3. As well as facilitating the process,they will

weigh up the arguments on each side,challenge the parties and give a view on positions taken or options raised.

4. They will not act as judge

How does mediation fit into the legal process?

• Mediation is particularly likely to be encouraged by the courts at the allocation stage, case management conference and pre-trial review.

MEDIATION- THE SKILLS NEEDED

• There are some people who may be better suited to being mediators.

Negotiation skills• You need to know about the different approaches to

negotiation, and how they can be used by the parties in a mediation to similar effect.

• You must be a problem solver, and be able to suggest possible offers and counter-offers to each party.

Building trust• This confidence comes from trust.

Maintaining neutrality• You can be challenging and firm, but never

judgmental

Maintaining impartiality• As well as appearing neutral about the

outcome, you must treat the parties impartially.

Facilitating the process• Part of your job as mediator is to ensure that the

process runs as smoothly as possible.

Controlling the process and the people• People involved in a mediation can sometimes

behave honestly, calmly and fairly, but they can also sometimes be emotional, selfish, deceitful, rude or bullying.

• You will also act as a chairperson when the parties are talking to each other and should be able to stop one party dominating or two people talking at the same time.

PREPARING A CASE SUMMARY•A lawyer “advising” a client in mediation will often prepare a case summary for the mediator. •Lawyers will also need to plan the opening statement for the mediation with their clients.•Mediators will often encourage the parties to make the statement, so that they can hear it in the parties own words.

Statement should be short but include:

• A concise chronological description of the problem• Reference to the strengths of the case.• Reference to any objective standards of fairness that

might apply• Reference to the alternatives should no settlement be

reached• An acknowledgement of any of the side’s particular

strengths• An explanation of what is hoped will be achieved

through the mediation.

Joint meeting roomPrivate room Private room

Where will the mediation be?

The setting for a mediation can be very important.

What should those taking part in a mediation as lawyers consider?• The role of those acting as lawyers in a mediation is to

give advise and to help negotiate with the other side• During the mediation, they must let the mediator take

control of the process.• They must employ a creative, problem solving

approach.• If they are overly aggressive or confrontational, they

may stop the mediation working• Remember that the mediation settlement can include

anything the parties will agree to.

THE PROCESS-most mediation follow a standard format-there will be opening joint session followed by private sessions between the mediator and each party, in between which there will be more joint sessions-mediation will end with a final joint session

THE OPENING PHASE-When you are ready to begin, you should get the parties into the main joint area where everyone will meet at various stages during the negotiation-opening phase is an introduction to the mediation itself-whole process will be explained by the mediator-you should cover the following:

-who you are-purpose of negotiation-position regarding the confidentiality and authority-the way the mediation will be structured- how long it will take-will be binding-any other rules-any questions

-Your job as a mediator at this stage is to instil confidence in the process and in you personally-have to manage the whole process, so you need to be firm but also personally friendly and approachable-need to make the parties feel that you are there to help all of them find a solution to their problem-this is very important and the whole mediation can fail if you don`t do it properly and yet the parties may be sitting there thinking-Toward the end of this phase, both parties will be asked to present their case by making opening statements-this is done fairly informal way, and some discussion might make place between the parties after the opening statements have been given-It`s useful for you, as the mediator, to hear these opening statements, but it also means that each side can start to appreciate the needs and priorities of the other

MIDDLE STAGETHE STRUCTURE OF THE MIDDLE STAGE-Most complex stage, when issues are explored and offers and counter offers will be made and considered-Parties will either start this phase by going into separate private rooms with their advisers, if they have any, and the mediator to talk in private, or they may start it with a joint session which follows on from the opening phase

-encouraging parties to talk to each other-discussion of the issues-possible solutions-make sure the atmosphere is as constructive as possible-fairly short-ask neutral questions-particularly sensitive issues

AT THE END OF THE FIRST JOINT SESSION-should have good idea about where the mediation might go-what kind of settlement might be possible-you should summarise what had been said-highlighting any points of agreement-explain why you think this is good-thank all the parties for their contribution-explain what will happen in the next stage

IF YOU DECIDE TO GO STRAIGHT TO THE FIRST PRIVATE SESSION-go first to the party who make the opening statement-give some time to the party-time spend with each party must be equal-more full and frank discussion without the threat of interruption or argument-acknowledge these feelings-see more clearly where the problems and blockages exist-suggest options that might be acceptable

THINGS YOU SHOULD RECOVER-remind them everything said will be confidential-strengths and weaknesses of their case-consider the objectives and their order of priority-best alternative to a negotiated agreement is-details of any prior negotiation-find out what their future needs and what they can offer-ask whether they have any questions for you

-In private session; -you should always begin by reminding everyone that everything said will be confidential-aiming to create a better relationship of trust-building these relationship means you can get the real story behind the things said in the joint sessions-one of the functions of private sessions is for the parties to come up with possible settlement options

The Advantages and Disadvantages of Mediation

Advantages• A high success rate• A chance to be heard• A fair one• Can be informal• Creative• Informative• Can be fast

• Cheap• Confidential• Discussions are all without prejudice• Voluntary• The parties have more control• Convenient• Can be used for any kind of dispute

Disadvantages• Even a binding agreement which is written

down and signed only has the same level of enforceability as an ordinary contract. That doesn’t compare with a court order.

• The parties have to agree to mediate.• There are some cases where mediation is

not going to be appropriate.• Need to get the timing right.