Most mediators will request preliminary information to be provided to them well ahead of the mediation itself. If proceedings have been commenced, this early information disclosure will sometimes take the form of copies of the proceedings and/or position statements prepared by the lawyers who are acting for the parties.
Some Mediators will additionally suggest that a pre-mediation meeting will be useful as an opportunity to meet the parties and gain a preliminary heads up about any stumbling blocks or the general nature of the issues that need to be resolved. Often, such pre-mediation meetings take place on the day of the mediation itself.
Most mediations will normally commence with a mediator requesting all of the parties to come into the mediation room and welcoming the parties to mediation. After introductions, the mediator will state the purpose of the day and outline some basic rules for the mediation, including the fact that all discussions are without prejudice and describing the nature of their role.
If there are lawyers present, the next step is that each lawyer will summarise their respective client’s case. This is followed by questions and answers, designed to educate each party on each other’s case.
From there, there will normally be a break, and the mediator will separate the parties. At this time the mediator will spend some time with each party separately in order to ascertain what their needs will be on settlement and to get each party thinking about possible pathways to settlement.
The rest of the mediation can be fairly fluid at this point. Sometimes the parties need to reconvene to discuss further factual differences between them. Sometimes the parties are kept apart in the mediator will move between the parties in an attempt to broker a settlement.
It always pays to keep an open mind during the day. I have seen many successful mediations produced settlements that neither party would have expected at the beginning of the day.
Once agreement is reached, the lawyers who are present will then draw up the agreement, which it is normally advisable to sign before the mediation is brought to an end.
