Although mediations are more informal and flexible than arbitrations or litigation, they still have a basic structure of procedures that are followed by most mediators. In order to maximize the likelihood of achieving a successful outcome, it’s important to understand the role each step plays in helping to guide the parties towards resolution.
How many stages does mediation have?
Unlike litigation or arbitration, there is no pre-defined number of stages for a mediation. Given that mediation is voluntary and completely dependent on the parties negotiating in good faith to reach a mutually agreeable resolution, it is designed to be one of the most procedurally flexible forms of alternative dispute resolution. Depending on the source, mediations can consist of anywhere from 3 to over a dozen distinct, major stages depending on factors like the number of parties and the complexity of the dispute. That being said, many mediation experts identify 6 distinct stages that are common to most mediations.
This initial stage is usually run by the mediator as he introduces those in attendance and sets the time frame for the session. It’s common for the mediator to give an opening statement that explains the ground rules and includes a review of the mediation guidelines with the parties.
The Parties’ Opening Statements
Once the introductory stage is complete, the mediator will give each party the opportunity to present their opening statement and explain their position. Generally, the party who requested the mediation will go first. This statement shouldn’t necessarily be mere a recital of the facts, but more an opportunity for each party to frame the issues as they see them. If there are attorneys present who give the opening statement on behalf of a party, the mediator will then usually ask the client to also make a statement. This allows those present to hear the party’s position directly from the source, without the filter and legalese of a professional negotiator.
After all the opening statements have been given, the mediator will then start asking the parties open-ended questions. The questions can vary dramatically depending on the particulars of the matter, but the purpose of the process is the same: to allow the mediator to build a sense of rapport with the parties and start identifying the key issues that form the core of the dispute. During this stage the mediator will often summarize and repeat back ideas offered by the parties in order to gather the relevant information needed for the next stage of the process.
Identification of the Issues
Once the mediator is satisfied that enough information has been gathered, he will usually then focus in on the areas where it appears the parties are in agreement, if any. If there is common ground to be found, identification of these areas of agreement will help the mediator separate out the issues that have the potential to be resolved from those where the parties are unlikely to reach a consensus.
Negotiating and Bargaining
After the issues where the parties remain in disagreement are identified, the often difficult (and sometimes heated) process of negotiating and bargaining begins. Rather than allow the parties to go back and forth with each other while they trade their individual demands and proposals, the mediator will usually meet with each party separately at this stage. During these individual caucus sessions, the mediator will offer his analysis of the other party’s positions and the proposals that each party has put on the table. In addition to providing his analysis of the ideas the parties have put forth, it is also common for the mediator to submit his own proposals in an attempt to move the parties towards a mutual consensus. The mediator may go back and forth meeting with the parties individually numerous times until it becomes clear that no resolution can be found or until an agreement is reached that resolves all or some of the parties’ disputes.
While far from guaranteed to occur, the ideal result (and final stage) of a mediation is to end the session with the parties reaching a mutually agreeable settlement. If the parties are able to reach such an agreement, they will have succeeded where many fail and resolved their disputes on their own terms without having to resort to the far more adversarial procedures of arbitration or litigation.
Our team at Hugill & Ip has extensive experience in dealing with Mediations and other Dispute Resolution issues – so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.