Mediation Process

Question 1

Why is it important to know when mediation starts?

Answer 1

• Statutory limitations suspended during cross-border disputes
• An ADR clause may require parties to commence/finish by a particular time
• May be important for binding to know whether an offer was made during or after mediation
• May be necessary to know if mediation had commenced or ended for the purposes of ascertaining whether parties were bound by a particular provision at a particular moment

When mediation begins and ends can often only be ascertained by examining the intention of the parties from facts and circumstances.

Question 2

Does mediation always follow set stages?

Answer 2

• Mediation is flexible and may not follow the strict stages. May be tailored for each case

Question 3

The Opening Stage - introductions

Answer 3

• Mediator will visit parties individually to greet them informally and answer questions
• He will clarify who will make the opening statement, and see how they want to be addressed

Question 4

What takes place in opening plenary?

Answer 4

• Mediator will take a central position with the parties seated closest to him
• Next along will usually be those with authority to settle, lawyers, witnesses, and experts
• Introductions are first, then the mediator may also have them sign another copy of the agreement
• The mediator makes an opening statement, to:
  
  • Introduce himself, personally and professionally
  • Explain what the mediation is about, the process, timing, and roles of the parties
  • Confirm that he is neutral and impartial, and disclose any interest in the parties
  • Explain that he is not there to decide the case
  • Explain that the process is flexible
  • Explain the confidential nature of the mediation
  • Explain ‘without prejudice’, that anything here cannot be used in litigation
  • Explain the voluntary, non-binding nature of the process
  • Check that the parties present have authority
  • Explain the procedure in the event that settlement is reached

Question 5

Who makes openings statements, and what is contained in them?

Answer 5

• Opening statements by the parties
• More common for counsel to deliver this, but parties will always be invited to add
• Claimant usually goes first

Reasons:

• Let the parties air their views
• Enable the parties to persuade the other side of the strength of their case
• Inform the mediator about the nature of each party’s case
• Point out weaknesses in the other side’s case
• Set out the remedy/outcome sought
• Give each party their ‘day in court’
• Give the other side (and the mediator) the opportunity to assess the personalities involved, their credibility and the quality of their arguments
• A time limit will usually be imposed
• Individuals should be referred to courteously and should make eye contact
• Should be concise yet thorough
• Documents may be referred to
• Team for the party may divide the statement (counsel for legal merits, client for aspect of particular concern, and then expert for technical issues)
• Mediator will then ask if any other member wishes to add something
• He may ask questions for clarification, in an open and neutral way
• He may give the other side the opportunity for questions (again, in an open way)

Question 6

Will there be witnesses and experts in the opening plenary?

Answer 6

Lay witnesses

• Very rarely, live evidence may be given if there is a dispute with facts
• Usually happens after the opening statement
• The evidence will not usually take the form of XIC and XX, rather the mediator will ask him to give a brief summary of the evidence, and then the mediator will ask questions (the parties may be allowed to ask questions as well)

Expert evidence

• Where there is a dispute between the experts, the parties may decide which version is more likely to be accepted by the court
• Can give evidence in a joint session, or simply be available in private sessions
• In a joint session, there are two options:
  
  • The lawyers can question the expert with a pre-determined time limit
  • The mediator can question, but may not XX or challenge, to remain neutral

Question 7

How does the mediator close the opening joint meeting?

Answer 7

• Mediator will usually summarise concerns, and areas of agreement and dispute
• He will explain how the meetings will be conduct and the role of the parties
• He will explain the confidential nature of mediation
• He will set a timetable, and indicate who he will see first and for how long

Question 8

When might a joint exploratory stage be used?

Answer 8

• To get the parties to co-operate with each other if they are civil
• agree key issues, and to agree the order of discussion
• work together to explain a particular issue for the mediator
• enable them to plug any gaps
• discuss the figures and costs

Question 9

What are the purposes of separate private meetings (closed meetings)?

Answer 9

• Give the parties privacy to discuss issues, strategy and proposals
• Enable the mediator to meet with them privately to discuss the dispute, strategies and reality-testing
• Enable the parties to consider proposals and make a considered response
• Enable the mediator to frame and communicate offers in a constructive way
• Two stages usually take place:
  
  • Exploration/information stage
  • Negotiating/bargaining stage

Question 10

What is the point of the exploratory/information stage?

Answer 10

Carrying out a ‘reality test’

• Reviewing and evaluating the strengths and weaknesses
• Focusing attention on gaps and facts which they may have difficulty proving at trial
• Working out best, worst and realistic outcomes at trial

Probing underlying issues

• There are usually many underlying issues (e.g. anger, anxiety, resentment, economic factors)
• Some are only able to move forward once they have vented these issues

Question 11

What will the mediator have the parties consider in generating settlement options?

Answer 11

• Wider factors that impact (e.g. maintaining a relationship, reputation)
• The consequences of a settlement not being reached
• Evaluating the case in the same way
• Focusing on their interests rather than strict legal positions
• Disclosing additional documents
• Likely outcome of litigation
• Creative options

Question 12

How will the mediator acting as a shuttle-diplomat, and what are the dis/advantages?

Answer 12

Shuttling offers, concessions, information and responses between the parties

He will judge when to time offers, in order to maximise the chances of settlement

Advantages:

• Offers and concessions made by a mediator will be perceived more attractive
• Effective if the parties have a limited range of negotiating skills or if things are hostile

Disadvantages:

• The parties are not working together
• Confidential information may be leaked by the mediator
• The process may take longer
• The mediator has much control and power
• Because of this, sometimes the mediator will just conduct a joint negotiation meeting

Question 13

How will the mediator help devise strategies to help the parties work through deadlock?

Answer 13

• Rigorous reality testing
• Re-assessing risk
• Dividing one issue into many issues
• Adjourning the meeting for reflection
• Help the parties save face by blaming him for a proposal, or blaming changing circumstances
• Suggesting that different members of the team brainstorm together
• If deadlock could be resolved with a third-party determination, adjourning to obtain this
• Bridging the gap in monetary offers by changing payment time or scheme
• Making sure they appreciate the risks of proceeding to trial
• Closing final gap by splitting the difference, tossing a coin, charitable donation instead of payment to the other side, leaving remaining issues to trial or another ADR process
• Holding a joint meeting to suggest terms he thinks may be mutually acceptable
• If quantum is the sticking point, leaving quantum for another date or another ADR process
• Actually advising the parties, by evaluating the dispute and giving his professional opinion
• Leading the parties from a positional to a more principled strategy

Question 14

WHAT HAPPENS AT THE SETTLEMENT/CLOSING STAGE?

Answer 14

• If settlement is reached, mediator will confirm the terms
• The lawyers usually draw it up
• Parties should not leave until the agreement is signed
• Settlement is usually not binding unless signed
• This must be done carefully, so no non-binding terms are added last-minute
• However, the court may uphold ‘surprise’ terms if they are implied anyway (e.g. a 14-day payment due date)
• If the parties are acting in person, the mediator may draw up a heads of agreement or memorandum of agreed terms and ask the parties to sign it
• He will then set out the terms in writing so the legal representatives can then draw up a formal settlement afterwards
• In simple cases, the mediator may draft a settlement agreement himself
• To ensure a party understands the terms and that it is in his best interests, the agreement may provide that it will only be binding if legal advice is obtained within a certain time
• Once the final terms have been agreed, the mediator will usually convene a final joint meeting and read through the agreement. Once satisfied it reflects the parties’ objectives, they will sign it.

Question 15

What happens if no settlement has been reached?

Answer 15

• Will be recorded
• Will summarise the closing positions
• May invite the parties to adjourn instead
  
  • If the parties don’t want to adjourn, he will remind them of the advantages of settlement over litigation and perhaps suggest other ADR
• He may invite them to let their closing offers remain open for acceptance for a limited period of time
• It is important to agree whether the mediation is to be regarded as continuing during this period

Question 16

When will the mediator will convene the closing meeting?

Answer 16

• Settlement has been reached on all or some of the issues
• Settlement is not likely to be achieved
• One of the parties wishes to terminate
• The mediation needs to be adjourned

Question 17

When can the mediation be terminated/adjourned?

Answer 17

• The parties may request an adjournment at any time (e.g. to consider proposals, obtain advice etc)
• The mediation can also be terminated at any time by the parties or the mediator

Question 18

WHAT IS THE MEDIATOR’S ROLE FOLLOWING THE CONCLUSION OF THE MEDIATION?

Answer 18

• If there is no settlement, the mediator will have no further involvement unless the parties want him to help facilitate settlement later
• If there is no settlement, the parties may ask the mediator to provide a written opinion on the likely outcome/written settlement recommendation (for a separate fee)
• If it is clear that involvement is over, he may return the papers he was given
• However, some may retain their papers for the future, or destroy them
• If settlement was reached, the terms may state that any dispute about implementation must be referred back to the mediator

Question 19

What is an evaluative mediation variation?

Answer 19

The parties can request a non-binding neutral evaluation

However, this is likely to favour one case

Question 20

Evaluation of the merits of the case requested by both parties version

Answer 20

• Should only be given if all parties agree and request
• Should be agreed at the outset and recorded in the mediation agreement
• He is unlikely to agree if the parties have lawyers that can properly advise them

Question 21

Evaluation of one or more issues, requested by one party version

Answer 21

• During private meetings
• If the mediator agrees, it is given on a confidential basis
• He is likely to indicate that it is a broad view, without consideration of all evidence

Question 22

What is MED-ARB?

Answer 22

If mediation is unsuccessful, the mediator may be asked to arbitrate

The main advantage is that the parties can be sure the dispute will be resolved

However, the mediator will then be in possession of confidential information, or the parties will withhold confidential information for fear of prejudicing him

This can be overcome by having two different individuals, although this is costly

If settlement is agreed, the parties may appoint the mediator as arbitrator and ask him to draw up the agreement as an arbitration consent award, making it enforceable

• If the parties wish to do this, they should commence the process by an arbitration agreement otherwise, if the dispute is settled by mediation, there will be no ‘dispute’ within which an arbitral award can be made by consent

Question 23

What is ARB-MED?

Answer 23

• A simplified arbitration takes place first, followed by mediation
• The neutral person will make an arbitration award which is sealed and not revealed to the parties unless they are unable to reach settlement in the following mediation
• The uncertainty generated forces the parties to reach a settlement
• Consider that time and money is wasted on arbitration if mediation is successful
• The mediator may also be perceived to be hinting if he makes any evaluative comments

Question 24

When may telephone mediations take place?

Answer 24

• The Small Claims Court Mediation Scheme
• If the parties have been restrained by a court order from meeting each other
• If the parties live a long geographical distance from one another

Question 25

What are the stages of telephone mediation?

Answer 25

• Pre-mediation discussions with the mediator and parties by telephone
• Mediation by telephone conference
• If separate discussions are necessary, the mediator will call privately
• The negotiating phase can take place by the mediator acting a a shuttle diplomat, or by telephone conference
• The mediator confirms agreement and assent with a final conference call
• The mediator may record the terms of the draft agreement in writing and send it to the parties before the end of the conference for it to be fully drawn up and signed

Question 26

Online mediation

Answer 26

• Will be fully documented by the email and text exchanges that take place
• There may be issues about confidentiality
• May be possible to arrange virtual meetings via webcam conferences

Question 27

What preparation and case analysis will the advocate do?

Answer 27

• Persuasion, advising,
• Analysing prospects of success
• Looking at practical, commercial and personal considerations
• Strategy for mediation

Question 28

What are the aims of mediation advocacy?

Answer 28

• Informal and non-adversarial
• No opportunity for forensic witness handling
• Aim is not to win, but to achieve settlement
• Focus is on the parties and not the lawyers
• Mediator does not need to be ‘won over’ or persuaded like a judge
• Make the mediator clear as possible on issues

Question 29

What will the advocate advise the client on in mediation?

Answer 29

• Advising on whether mediation is suitable, sanctions that may be imposed, when mediation should be used, nature of the process, role of the mediator and parties, and preparation
• Preparing the lay client to deliver part of the opening statement
• Strengths and weaknesses of their legal positions
• Giving legal advice on the issues raised by the other side, the effect of their offers and concessions, and how to respond to them
• The offers and concessions the client wishes to make or should make
• Tactics and a negotiating strategy
• Advising on whether the settlement reached is reasonable
• Advising the mediator about the issues, both legal and factual strengths

Question 30

How will the advocate deliver the opening statement?

Answer 30

• Seek to persuade the other side of the client’s case
• Still acknowledging the other side’s concerns and positions
• Non-judgmental, non-confrontational, readily understandable

Question 31

What is the advocate’s role in private closed meetings?

Answer 31

• Persuading the mediator of the merits of the case and the weaknesses of the other side’s
• Raising questions the mediator should convey to the other side to obtain further information
• Giving information to pass to the other side
• Discuss and explore with his client in private and other members of the team
• Brainstorming with the mediator
• Deciding when the client’s upper and lower limits should be revealed
• Work with the mediator to make the client’s assessment more realistic
• Possibly meeting privately with the other side’s lawyer

Question 32

What is the advocate’s role in settlement?

Answer 32

• If the settlement agreement is to be drawn up, the lawyers draft it
• Time pressure to do this before the close of mediation
• Details may need to be further negotiated
• The lawyer should do his job well, but it is not the lawyer’s responsibility to fill in the gaps or to ensure that mediation ends in a legally binding agreement
• If it’s clear that settlement cannot be achieved, the advocate should ensure that the parties record in writing those issues on which agreement was reached, so as to achieve a narrowing of the issues to be determined at trial