Thoughts on Mediation: The Mediation Day

This article is based on the writer’s own experiences and thoughts arising out of a combination of practising as a mediator for over 15 years and a litigator for depressingly longer than that.

Doubtless some readers will have their own views on what follows based on personal experience and their own sphere of practice, particularly those engaged in matrimonial law. However it is hoped that this may be of some interest to practitioners, offering as it does views from both sides of mediation practice.

The article comes in two parts, this part now being the second and covering the mediation day itself. Find the first part here.

Start of the day

At the start of the mediation day all involved should have completed the preliminary arrangements referred to at the end of the previous part to this article. Papers will (hopefully) be in reasonable order, and the parties in their respective breakout rooms ready to start promptly and confidently at the agreed start time.

A mediator should always attend early with any assistant/observer (the attendance and identity of whom will have been confirmed beforehand) in order to see that the arrangements are all in in place. However it is also important that the mediator spends such time as is necessary with the individual parties in order for introductions to be made, any new issues to be raised, for the mediator to be satisfied that each party understands the process, and in particular so that any sensitive dynamic of the dispute may be aired in confidence.

The importance of that preliminary time is not to be underestimated. It should ensure that each party feels empowered in the mediation, despite the history of the dispute and any prior acrimony between the parties (and sadly sometimes their representatives). The day belongs to the parties alone, not the mediator or the representatives. It should be possible to secure agreement between the parties as to who will speak first in any opening session.

Care should be taken to ensure that the mediation agreement is correctly signed by the parties and their representatives, and any other attendees, in order to ensure the confidentiality of the process. If for any reason any attendee refuses to sign, they should be invited to leave and the mediation proper should not commence until that issue has been addressed.

The opening session

The usual format of the mediation day is for there to be an open session, usually in the mediator’s room which will hopefully be large enough to accommodate everyone comfortably.

However it is sometimes the case that a party will state that they do not wish to attend an open session, the most often cited reason being alleged aggressive behaviour on the part of the other party (or their representatives) on earlier occasions. Whilst respecting the wishes of all parties the mediator should not just accept that without further enquiry. Unless there are pressing reasons for the open session not to take place (for example genuine fear), the potential benefits of the opening session are likely to outweigh such concerns. It enables the mediator to repeat what has been said to the parties in private with regard to the nature of the process (thereby reassuring the parties that each will be treated equally), and at a basic human level the preliminary introductions will hopefully be courteous and set a good bedrock for the day to come. Whilst it is doubtful that it will cause a party to regard the other as having a halo, equally it may reassure them that they might not have horns after all.

Opening statements should be as brief as circumstances allow, hopefully alluding to the salient aspects of the dispute with reference to the position statement, but also reiterating that the party is there in good faith to achieve settlement. It is a good time for any apology to be made: an early sincere apology will often be appreciated by the receiving party, and may well bear fruit as the day progresses. Of fundamental importance is the realisation by each of the parties that they will be listened to and respected (despite the history of the dispute), which will hopefully afford them a break from the past.

Where the opening meeting goes from that point onwards depends on the parties themselves. If there is constructive discussion that should be allowed to continue, and indeed in some cases settlement can be arrived at without the need for any breakout sessions. The mediator must be astute in monitoring the tone of language and body language during this time. Open sessions are rarely comfortable experiences, but there is a marked distinction between a candid and uncomfortable exchange of views and the session becoming oppressive or abusive. If the latter, the mediator should find a way of concluding the session and moving the parties on to breakout sessions.

Breakout sessions

The first breakout not uncommonly sees each party expressing disappointment at what was said and querying the usefulness of the mediation itself. However there will also hopefully be an acknowledgment that they were listened to with respect, enabling the mediator to start drawing out what it is believed salient issues and needs are and how best to engage the other side in addressing those. Frequently further information is required from the other side.

At the end of each breakout session the mediator should clearly establish the nature of the authority they hold in requesting information from the other party and/or making any offers.

It is seldom the case that constructive suggestions for settlement will flow after the first breakout sessions, but time is well spent in causing the parties to reality test their own position on various issues before the move to considering and making offers.

At all times the parties should feel empowered to make suggestions as to how matters may be progressed, and it is sometimes the case that a further open session will assist (whether just the representatives or sometimes just the parties themselves).

The role of party representatives

Competent representatives will be familiar with the fact that whilst they can advance the case of their client emphatically, during the mediation day they primarily operate as mediation advocates in order to assist their client with the best chance of settlement. Acting as a litigation advocate as if at a hearing seldom assists anyone.

Offers

Initial offers are seldom received with satisfaction, usually with affront and sometimes with a reference to the need for hats and coats: it has been said that the parties are never further apart than when the first offer is made. However offers have to start somewhere.

Wherever possible the parties should be encouraged to make bold offers, safe in the assurance that in a mediation they can explore avenues of settlement and that nothing is binding until any settlement is the subject of a written agreement. There is no reason why such an offer cannot come from the claiming party, and it enables the mediator to invite the party receiving the offer to respond in a similar fashion. Minor concessions from stated positions (commonly known as ‘salami slicing’) are to be discouraged wherever possible: they are frequently a waste of time and can be taken as an indicator of bad faith.

Settlement

The parties should not be shoehorned into any settlement. A mediation day is particularly exhausting for a lay party, and the need to end the mediation to reflect on the situation should be respected by all concerned. Although a mediation day may end without an apparent result, often it will have proved a catalyst for continuing without prejudice discussions resulting in settlement. In such circumstances a mediator will usually make known their willingness to continue to assist if required to do so.

Assuming that the parties reach settlement it is for the representatives (not the mediator) to draw up the written terms of settlement such as to be capable of being signed at the conclusion of the mediation: however the mediator should check that all terms are included, and that the document is not materially deficient. Where the parties are not able to sign a concluded settlement agreement (for example where there are certain issues that need to be verified and/or authorised, or the parties do not have representation but wish to take advice on the drafting) then the parties should be encouraged to nonetheless put down the terms in writing but with a suitable caveat such as ‘without prejudice, subject to contract’.

Conclusion

The end of the mediation day will almost inevitably see all concerned tired, and may take many forms: from a party storming out of the building to all retiring to the pub. The parties will hopefully feel that they own the outcome and have closure, and the importance of a handshake is never to be underestimated.