What Is Mediation?
1.A neutral third party(mediator)helps two or
more parties to solve a dispute or conflict by
facilitating their negotiations.
1.Michael Noone,in Mediation,outlines four
Facilitative and evaluative styles of mediation
1. Mediator’s qualification,training,knowledge
2. Some mediator are more evaluative of the
3. As well as facilitating the process,they will
weigh up the arguments on each
side,challenge the parties and give a view on
positions taken or options raised.
4. They will not act as judge
How does mediation fit into the legal
• Mediation is particularly likely to be
encouraged by the courts at the allocation
stage, case management conference and pretrial review.
MEDIATION- THE SKILLS NEEDED
• There are some people who may be better suited
to being mediators.
• You need to know about the different approaches
to negotiation, and how they can be used by the
parties in a mediation to similar effect.
• You must be a problem solver, and be able to
suggest possible offers and counter-offers to each
• This confidence comes from trust.
• You can be challenging and firm, but never
• As well as appearing neutral about the
outcome, you must treat the parties
Facilitating the process
• Part of your job as mediator is to ensure that the
process runs as smoothly as possible.
Controlling the process and the people
• People involved in a mediation can sometimes
behave honestly, calmly and fairly, but they can
also sometimes be
emotional, selfish, deceitful, rude or bullying.
• You will also act as a chairperson when the
parties are talking to each other and should be
able to stop one party dominating or two people
talking at the same time.
PREPARING A CASE SUMMARY
•A lawyer “advising” a client in mediation
will often prepare a case summary for
•Lawyers will also need to plan the
opening statement for the mediation
with their clients.
•Mediators will often encourage the
parties to make the statement, so that
they can hear it in the parties own words.
Statement should be short but include:
• A concise chronological description of the problem
• Reference to the strengths of the case.
• Reference to any objective standards of fairness that
• Reference to the alternatives should no settlement be
• An acknowledgement of any of the side’s particular
• An explanation of what is hoped will be achieved
through the mediation.
Where will the mediation be?
Joint meeting room
The setting for a mediation can be very important.
What should those taking part in a
mediation as lawyers consider?
• The role of those acting as lawyers in a mediation
is to give advise and to help negotiate with the
• During the mediation, they must let the mediator
take control of the process.
• They must employ a creative, problem solving
• If they are overly aggressive or
confrontational, they may stop the mediation
• Remember that the mediation settlement can
include anything the parties will agree to.
-most mediation follow a standard format
-there will be opening joint session followed by private sessions between
the mediator and each party, in between which there will be more joint
-mediation will end with a final joint session
THE OPENING PHASE
-When you are ready to begin, you should get the parties into the main
joint area where everyone will meet at various stages during the
-opening phase is an introduction to the mediation itself
-whole process will be explained by the mediator
-you should cover the following:
-who you are
-purpose of negotiation
-position regarding the confidentiality and authority
-the way the mediation will be structured
- how long it will take
-will be binding
-any other rules
-Your job as a mediator at this stage is to instil confidence in the process and in you
-have to manage the whole process, so you need to be firm but also personally
friendly and approachable
-need to make the parties feel that you are there to help all of them find a solution to
-this is very important and the whole mediation can fail if you don`t do it properly and
yet the parties may be sitting there thinking
-Toward the end of this phase, both parties will be asked to present their case by
making opening statements
-this is done fairly informal way, and some discussion might make place between the
parties after the opening statements have been given
-It`s useful for you, as the mediator, to hear these opening statements, but it also
means that each side can start to appreciate the needs and priorities of the other
THE STRUCTURE OF THE MIDDLE STAGE
-Most complex stage, when issues are explored and offers and counter offers will be
made and considered
-Parties will either start this phase by going into separate private rooms with their
advisers, if they have any, and the mediator to talk in private, or they may start it with
a joint session which follows on from the opening phase
-encouraging parties to talk to each other
-discussion of the issues
-make sure the atmosphere is as constructive as possible
-ask neutral questions
-particularly sensitive issues
AT THE END OF THE FIRST JOINT SESSION
-should have good idea about where the mediation might go
-what kind of settlement might be possible
-you should summarise what had been said
-highlighting any points of agreement
-explain why you think this is good
-thank all the parties for their contribution
-explain what will happen in the next stage
IF YOU DECIDE TO GO STRAIGHT TO THE FIRST PRIVATE SESSION
-go first to the party who make the opening statement
-give some time to the party
-time spend with each party must be equal
-more full and frank discussion without the threat of interruption or
-acknowledge these feelings
-see more clearly where the problems and blockages exist
-suggest options that might be acceptable
THINGS YOU SHOULD RECOVER
-remind them everything said will be confidential
-strengths and weaknesses of their case
-consider the objectives and their order of priority
-best alternative to a negotiated agreement is
-details of any prior negotiation
-find out what their future needs and what they can offer
-ask whether they have any questions for you
-In private session;
-you should always begin by reminding everyone that everything
said will be confidential
-aiming to create a better relationship of trust
-building these relationship means you can get the real story
behind the things said in the joint sessions
-one of the functions of private sessions is for the parties to
come up with possible settlement options
The Advantages and
Disadvantages of Mediation
• A high success rate
• A chance to be heard
• A fair one
• Can be informal
• Can be fast
Discussions are all without prejudice
The parties have more control
Can be used for any kind of dispute
• Even a binding agreement which is written
down and signed only has the same level
of enforceability as an ordinary contract.
That doesn’t compare with a court order.
• The parties have to agree to mediate.
• There are some cases where mediation is
not going to be appropriate.
• Need to get the timing right.