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Mediation is flexible, so ‘should happen’ is perhaps not quite the right thing to say. A good mediator always needs to know when and how to change direction.
The mediator will always remind you that he / she is not a judge or arbitrator there to impose a decision upon you. The mediator’s role is to help you find a solution that works for you. Mediators sometimes say – ‘A good settlement is one where both parties are equally unhappy, but pleased to have achieved closure.’ In other words:
Many mediators have an informal telephone chat with solicitors or parties before the mediation – useful to find out more about how the dispute originated and what makes the parties tick.
Before the mediation, the parties provide a documents’ bundle to help the mediator understand the dispute and case summaries, often called ‘position statements’. Parties should collaborate in the preparation of the documents’ bundle. The mediator may indicate what he / she might find helpful. Too often the documents’ bundle is too big – the mediator needs the big picture, not the micro detail. Parties can fill in the gaps at mediation, if they are relevant. On the day a good mediator tries to interact more with the parties than the documents’ bundle.
The mediator decides the format for the mediation. Usually there is a ‘round table’ opening session. Sometimes though, mutual animosity or the perception of power imbalance might unleash destructive forces sufficient to highjack the mediation and a ‘round table’ is best abandoned. Where there is a ’round table’ the mediator may learn nothing new. One mediator started the opening session by asking the parties (including lawyers) – ‘Tell me one good thing that happened to you this week.’
But the ‘round table’ does allow parties to interact for possibly the only time in the day. You can tell the other party to their face – ‘I don’t think you understand how angry you have made me … but I am here to see if we can work through to a solution and move on’. During the ‘one to one’ sessions the mediator tries to understand what each party wants, identify their needs and sift out their good points. Rather than say – ‘Are you seriously suggesting …?’ the mediator’s approach is likely to be – ‘Just to get it straight in my mind, you seem to be suggesting … How do you think the other party will respond?’ That allows parties to confront possible weaknesses in their own cases and ‘self-discover’.
At some stage in the day, the mediator may decide to speak to the parties without their lawyers, or speak to the lawyers separately without clients. It may be that one of the lawyers is being overly legalistic and has forgotten that the purpose of mediation is to achieve a deal.
Parties may throw in ‘off the wall’ settlement terms that are important to them. One disgruntled purchaser of a second hand grey import car wanted a ‘one to one’ with the MD of the garage to ‘give him a piece of my mind.’ That required a negotiation with the MD – everything else was sorted, but for the customer that was the icing on the cake. With persuasion, the MD agreed, listened, clicked his heels and left the room. Soon forgotten by the MD, it meant everything to the annoyed customer.
Hopefully as the mediator goes to and fro between the parties the differences reduce to the point where no sticking points remain.
If things are going badly, rather than simply abort the mediator may decide to take a break and invite everyone else to do so too. In one mediation, there was a park opposite the mediation venue. The mediator said – ‘We all need a break. I think I need a stroll round the park with each of you in turn.’ It was amazingly therapeutic for both parties to lean on the railings to the duck pond and watch the ducks bobbing about for bread.
Time to write it all down – Mediators dislike agreements in principle. After a hard day’s mediating it is depressing to be sitting in the train home and have a call to the mobile – ‘You were tremendous today, but I just can’t go through with that agreement. It’s nothing personal.’
If lawyers are present they can draft terms of agreement, and to terminate Court proceedings provide the necessary documentation, usually a Tomlin Order. It is more tricky if one party is unrepresented. The mediator cannot advise – so it may be a case of the agreement not becoming final until the unrepresented party has at least had the opportunity to consult a solicitor about the agreement just made.
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