Introduction
Mediation - that is the word which is prevalent in Courts these days. Courts and lawyers talk about it. But the question is: What is Mediation - or, put correctly, How should Mediation be practiced?
Though the Courts are making an effort to grasp the concept of Mediation through courses of their own, mediation workshops with the Bar, and Practice Directions, this paper hopes to enlighten lawyers and readers on how Mediation should be practiced.
Mediation is a process to help parties communicate directly with each other, because once a dispute has arisen, a barrier is often put up. Litigants do not speak to each other anymore. They speak through their lawyers. Once this happens, it becomes more about rights, law, and facts.
However, Mediation is a process to assist parties to communicate directly with each other - and to assist parties to explore possibilities.
This paper briefly highlights the Mediation process. It is not a substitute for a mediation course, nor is it a complete guide. It is to briefly highlight the Mediation process.
The Mediation process begins like this.
The Mediation Process
A. Mediator's Opening Statement
A Mediator will first introduce himself to both parties. He will then thank parties for attending the Mediation. Thereafter he will inform them of the following:
- Mediation is voluntary;
- the Mediator will be impartial;
- he is not there to judge a person's character or morals, or the respective merits of their case. He is there purely to explore possibilities;
- whatever the parties say is completely confidential and will not be used in Court;
- no legal question or evidence will be raised;
- he will ask the parties about their authority - whether they are able to make decisions on their own, whether they have a mandate from their management, or whether they need to consult with their Board or legal advisers;
- the Mediator will tell the parties to feel comfortable;
- there is no obligation to anyone. It is, after all, their meeting;
- there will be absolute fairness;
- the Mediator will state some ground rules. He will inform both parties that each party will be given time to say their views;
- if there are any interruptions by a party, the Mediator will inform them to put it in writing and state their views when it is their turn to speak.
B. Parties' Views & Issues Raised
After giving his Opening Statement, the Mediator will then invite one of the parties to speak. Say the Plaintiff decides to speak first.
Most occasions during the first session, the Plaintiff will state his rights and what he is entitled to. Most times he will say that he has evidence to support his case and his lawyers have told him that he has a good case.
A good Mediator will persuade the party not to refer to evidence. Instead, the Mediator will get the party to speak more. After all, Mediation is a process to facilitate a resolution through discussion, suggestions, and exploring possibilities.
During this time, the Mediator will try to figure out the Plaintiff's issues. The Mediator will try to probe with certain positive questions without interrupting the Plaintiff too much.
After the Plaintiff has spoken, the Mediator will then turn to the Defendant to speak.
The Defendant will invariably go through the same mind-set. The Defendant will state his facts, accusing the Plaintiff of causing the dispute, and the Defendant too will speak about evidence.
Again a good Mediator will persuade the party not to refer to evidence. The Mediator will get the party to speak more.
After the Defendant has spoken, the Mediator will then highlight the issues with the consent of both parties. The Mediator will highlight issues using neutral words so that parties are not offended or uncomfortable - and so that parties do not feel that the Mediator is biased towards one party.
After highlighting the issues, the Mediator will then invite one party to speak on the issues. Say the Plaintiff decides to speak first on the issues.
The Mediator will listen carefully and raise certain questions, again without interrupting too much. A Mediator will also try to raise questions which would acknowledge the contributions of the Defendant.
By this, the warring barriers will slowly fall - because by initially blaming everything on the Defendant, the Plaintiff has now acknowledged some of the good contributions of the Defendant. In this way too, the Defendant who is listening will appreciate the good acknowledgement of the Plaintiff, which may in turn cause the Defendant to take a less resistant attitude when it comes to the Defendant's turn to speak on the issues.
After the Plaintiff has spoken on the issues, the Defendant will then speak on the issues.
Again a good Mediator will listen carefully and probe certain questions, without interrupting too much. A Mediator will also try to raise questions with the Defendant which would acknowledge the good contributions of the Plaintiff - which in turn, again, will slowly bring down barriers and get closer to a resolution.
After both parties have spoken on the issues, the Mediator will then have a good idea of the real needs of the parties. A good Mediator will then explore the possibilities of a resolution. If a resolution is reached, then it is good.
However sometimes it is not that easy. A greater effort is required.
At times, even after the parties have raised their views and discussed the issues, some parties are unwilling or uncomfortable to raise certain issues in the other party's presence.
If this happens, then the Mediator will have a separate session with each party.
C. Separate Session
The Mediator will inform both parties that it may be an appropriate time to have a separate session with each party.
Before having a separate session, the Mediator will inform both parties of the following:
- even in this separate session, he will be impartial;
- complete confidentiality will remain at all times;
- a time limit will be set for each separate session with each party so that the parties will feel that the Mediator is fair to both parties.
A good Mediator will escort, say, the Defendant to an adjoining room or conference room and will make him feel comfortable - and will come to see him after he has had a separate session with the Plaintiff.
Thereafter the Mediator will have a separate session with the Plaintiff. During this separate session, a good Mediator will ask the Plaintiff what the real issue is that the Plaintiff is looking for - or what is the one thing which the Plaintiff is seeking.
The Plaintiff will then air his views. During this time, the Plaintiff may raise certain issues which he was uncomfortable to raise earlier when the Defendant was present.
A Mediator will then ask the Plaintiff whether the Plaintiff would later want to say this directly to the Defendant, or whether, with the permission of the Plaintiff, the Mediator can forward the Plaintiff's views to the Defendant when the Mediator has his separate session with the Defendant.
After the Mediator has his separate session with the Plaintiff, the Mediator will then escort the Plaintiff to the adjoining room or conference room with the same assurances of confidentiality, impartiality, and timing as he did earlier with the Defendant.
The Mediator will then have his separate session with the Defendant. The Mediator will go through the same process - for example, the Mediator will probe and ask the Defendant what the real issue is that the Defendant is looking for - or what is the one thing which the Defendant is seeking.
After the Mediator has had his separate session with the Defendant, he will then invite the Plaintiff to return to the meeting.
D. Joint Session
During this Joint Session, the Mediator will then say to one party whatever issues, needs, or contributions which the other party has allowed the Mediator to say.
Sometimes, a party will want to say this directly to the other party. This is good progress. There is more direct communication between the parties. More acknowledgement of their good contributions. In this way, the possibilities of a resolution are greater.
Thereafter, if a resolution is reached, then it is good.
However, if a resolution is still not achieved, then it is still a successful process - because at least the Mediator got the parties talking to each other during the mediation, compared to when parties were not even talking to each other before the whole mediation process began.
In this writer's view, the above is briefly how a Mediation process should take place.
Closing Thought
Remember - Mediation is not a process of finding a 'win-win situation'. Instead, it is something which the parties can live with.
Advocate & Solicitor
Certified Mediator