Mediation is a broad, civil process that is used to settle disputes between two different parties, which can be individuals, businesses or organisational groups without necessarily needing to go to court.
Unlike in a court case or other forms of arbitration, where the resolution to a dispute is in the hands of a third party, mediation allows for both parties to decide how they want to resolve the dispute and find a compromise solution that everyone can live with.
It is not inherently adversarial, and so can be beneficial as a first or early step to avoid damaging the relationships of everyone involved.
However, whilst it is a confidential, supportive process, there is a structure in place to ensure that discussions proceed positively towards the ultimate goal of ending hostilities, which can vary but typically includes six distinct stages.
Stage One: Opening Statement
At the start of the mediation session, the mediator themselves will introduce everyone, explain the goals of the mediation as well as the rules that are in place to help all parties succeed at developing a settlement together.
Stage Two: Opening Remarks From The Disputants
Each party involved in the dispute has a chance to describe the dispute, what consequences it has had and what elements may be part of the potential settlement.
Each party takes it in turns, whilst the mediator can ask questions and determine how receptive both parties may be to a resolution.
The most important aspect of the opening remarks is that they have the right to have their say, which means that other people involved in the discussion are not allowed to interrupt at this stage.
Stage Three: Joint Discussion
Once everyone had had a chance to discuss the dispute, a mediator will often invite the participants to respond to the opening statements in a bid to define the issues at hand.
This part will depend heavily on how receptive the people have been to the mediation process but can be the point where a breakthrough emerges.
Stage Four: Private Caucus
After a discussion as a group, the mediator will then offer each party a chance to meet directly with them and discuss the strengths and weaknesses of each dispute position and exchange potential offers.
The primary part of the mediation process, caucuses often repeat for as long as it takes to come to an agreement during the time allotted for mediation.
Stage Five: Joint Negotiation
After the caucus session, the mediator may in some cases bring the parties back together so they can negotiate the terms of a settlement directly.
However, this is not a common part of the mediation process and in most cases, mediation moves from step four to step six directly once a settlement is reached.
Stage Six: Written Settlement Agreement
If both sides reach an agreement, the mediator will put the main points of this settlement in writing.
This is known as a settlement agreement and once both sides sign the document it becomes a legally binding contract.
This can also be used to end court proceedings if they have already begun, with a Tomlin order enforcing what has been agreed.
If both parties did not reach an agreement, the mediator will help arrange another meeting if it is seen to be beneficial or help enable negotiations by phone.
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