Mediation Agreement

Process Outline

   Mediation Process Outline 

If you are unfamiliar with mediation, the following information will provide you with an overview of the process, the role of your lawyer or support people (if present) and my role as a mediator.  The mediation process is not set in stone but can be adapted to suit you.

A mediation agreement, to be signed by, or on behalf of the parties is also included.  The agreement sets out our mutual responsibilities and contains some basic principles such as confidentiality and cooperation that are important features of the process.

 THE MEDIATION PROCESS

Mediation is an opportunity for parties in dispute to resolve their dispute by agreement.  As mediator, I will help you to identify the issues needing resolution and to develop a range of options for resolving them.  If appropriate, the parties will reach a mutually acceptable resolution of some or all of these issues which will be formalized by a binding agreement.  Agreement is usually reached in mediation, if it is the outcome sought by the parties.  However, reconciliation or improved understanding are also positive outcomes of mediation.

THE MEDIATOR’S ROLE

There are many different mediation models and approaches.  In essence, I believe mediation allows parties to have a structured discussion in which disagreements will be regarded as problems to be solved rather than battles to be won.  My role as mediator is to:

• establish a constructive atmosphere and facilitate communication between the parties about their respective views

• assist the parties to isolate the issues and to identify and focus on their underlying needs

• assist the parties to develop a range of possible options for resolution of the issues

• assist the parties to reach an agreement resolving their issues.

 STEPS IN THE PROCESS

Pre Mediation

The steps in my mediation process are as follows:

Agreement to Mediate and Appointment of Mediator

• Mediation is voluntary, so agreement from the parties is required before mediation can begin.  Any party may end the process at any time.

• The parties agree to appoint me as an impartial mediator.  This is confirmed in a written agreement, signed by the parties and me.

Preliminary Conference

• I communicate with all parties or their lawyers to:

• agree on a time and place for the mediation;

• agree whether documents need to be provided in advance;

• agree on the process e.g. whether I need to meet with the parties separately in advance of a joint meeting.

 Mediation Attendance

• A person from each party with authority to settle the dispute, needs to be present at the mediation or available by phone.  The parties may agree that other people be present at the mediation, including fact witnesses and/or experts.

My Opening Statement

• Following instructions, I make a short statement explaining the mediation process and my role and answer any questions from the parties.

Parties’ Statements

• I will then ask each party in turn to briefly outline the issues they wish to raise in the mediation.

 Issue Identification and Agenda Setting

• Following the parties’ statements, the parties and I will identify the issues which are in dispute.  An agenda will be set for the exploration of those issues.

• The issues and options for their resolution will be explored with all parties present.  My aim during the mediation will be to facilitate discussion and promote understanding of the different perspectives each party brings to the dispute.     

• Private meetings, where I meet on a confidential basis with one party at a time, may also be held during mediation.  The aim of the private meetings is to allow parties to raise issues with me in private and to allow me to test any proposed settlement options.  Unless specifically authorized to do so, I will not disclose anything said in a private meeting, to another party.

  Recording Agreement

• If agreement is reached, the parties and their attorneys will record it in writing.  The parties will sign the written agreement. Once signed, the agreement is binding.  If agreement is not reached, the parties are free to try and resolve their dispute in other ways, such as court action.  In some cases, agreement may be reached later, after the parties have had time for further reflection, in negotiations between the parties or their lawyers, or in another mediation meeting.

PRELIMINARY CONFERENCE CONSIDERATIONS? – DO WE NEED ONE?

A preliminary conference is an opportunity for me to clarity any issues about the process, make arrangements for the mediation and establish that all parties are ready to mediate.

The preliminary conference provides the opportunity:

• For parties (and their lawyers, if present) to indicate their expectations of the process and for me to explain my approach to mediation.

• For me to ensure that mediation is the appropriate dispute resolution process and that I am without conflicts of interest and am able to mediate.

• For me to check whether the purpose of the mediation is to attempt to resolve a dispute, or to provide an opportunity for an exchange of views.  If the parties seek to resolve the dispute in mediation, I suggest that in their preparation for the mediation, they develop several settlement options.

• For the parties to agree to the terms under which the mediation is taking place.

• For the parties to agree whether further steps need to be taken in advance of mediation, for example, the exchange of documents or any further information or whether any expert reports are required.

• For the parties to agree on the information to be provided to me in advance of the mediation.  You may wish to provide me with a brief statement of the issues and possible options for settlement on a confidential basis in advance of mediation.  This gives me the backround to the dispute and also helps the parties to focus on the main issues and possible settlement options prior to the mediation, thus reducing time spent in the mediation itself.  Alternatively, the parties may wish to agree to a statement of facts or to exchange issue statements in advance of mediation.

• For the parties to agree who will attend the mediation.  If third parties are going to be present, it may be necessary for them to sign a confidentiality agreement.  It is important to ensure that everyone who could be affected by the outcome of the dispute is represented at the mediation.  It is also important that those present have the authority to settle should an agreement be reached.

• For a convenient date and venue for the mediation to be arranged.

THE ROLE OF ATTORNEYS IN MEDIATION

• To Advise and assist their clients in the course of the mediation;

• To discuss with each other, and with their respective clients, legal, evidentiary or practical matters which might assist to resolve the dispute.

• To generate possible options for the resolution of the dispute.

• To evaluate with their clients any settlement options generated in the light of the alternatives to a negotiated settlement.