The mediation will take place at a venue to be agreed between the parties. A neutral venue is best but often the offices of one of the parties or their lawyers is used for convenience or to save to the cost of hiring a venue.
The mediation will commence on a time to be agreed and continue until either a settlement is reached or it becomes clear that no settlement will be possible. It should be noted that mediations can often continue quite late into the evening and attendees need to be prepared for a long day.
Each party to the mediation will normally have a separate room at the venue and there will also be a room set aside for joint meetings (which also often functions as the mediator’s room).
The mediator will normally be supplied in advance with mediation statements prepared on behalf of each party and with a bundle of the key documents. Mediation statements summarise the position of each party for the mediator and are exchanged between the parties before the mediation.
The mediation will usually begin with a joint meeting of the parties and an opening statement by the mediator explaining their role to the parties. The mediator will also set out how it is envisaged that the mediation will progress. The parties will sign a mediation agreement setting out the terms on which the mediator is instructed and also confirming the confidential nature of the mediation.
Normally the mediator will then ask each party to give an opening statement. The purpose of such statements is to provide the mediator and the other parties with a short description of the issues as that party sees them. These are not necessarily just the legal issues although these are often the primary ones. It is also traditional for the opening statement to confirm the fact that the party is there in good faith and has a willingness to negotiate.
Mediators often prefer that the opening statement is made by the party rather than by their lawyer. The parties’ mediation statements will already set out their formal positions in some detail and there is therefore no need to repeat these in the opening statements, although they are often referred to.
Following the conclusion of opening statements the mediator will usually meet with the parties individually, known as ‘caucusing’. The discussions at these meetings are confidential and details will not be released to any of the other parties (unless the mediator is given specific permission to do so).
Following these initial caucus meetings the mediator may then call a further joint meeting if he feels that this could be an appropriate way to advance discussions. Otherwise, he may shuttle between the various parties determining whether the parameters for an overall settlement are likely to be in place.
During this process the mediator may ’reality test’ the positions of the parties. What this means is that the mediator will seek to identify whether each party has fully considered the strengths and weaknesses of their claim and is fully aware of the risks of proceeding if a settlement is not achieved.
At a certain point the mediator may encourage the parties to table offers that can be put to the other parties in caucus. As part of this process the mediator may also wish to get a feel for the highest / lowest figures a party will accept (although this information will remain confidential and not disclosed to the other parties).
This process will enable the mediator to assess whether the parameters within which the various parties are willing to settle overlap. If they do not then it is the job of the mediator to see whether any of the parties are willing to change their position. If no party is willing to change their position then the mediation will fail.
The mediator will not seek to force the parties into an agreement but will try and encourage the parties to see the benefits of a settlement.