How mediation works in practice

Bruce Greig
September 17, 2020

What should you expect during a commercial mediation process? Here’s how a typical day would pan out during a well-run mediation session.

You start off with everyone in one room. Mediators call this an “Opening Joint Session”.

The mediator will introduce everyone and explain the process and reinforce the message that mediation is voluntary, without prejudice, and confidential.

‘Without prejudice’ means that information shared during the mediation process can’t be used in any legal action in this dispute.

Confidentiality has two layers to it: the process itself is confidential to the parties and the mediator. And during the mediation, if one side reveals something to the mediator, the mediator won’t share that with the other side without explicit permission.

After the mediator has explained the process, each side will then lay out their understanding of the situation.

What happens next depends on how that first bit went: if both sides are still being polite to each other, the mediator will allow a discussion to develop with everyone still in the same room.

But if the parties are antagonising each other, the mediator will move everyone into private sessions. Each party goes to their allocated room and the mediator shuttles between them. So, to meet in person, you really need three separate rooms: a joint room, and private rooms for each side. Online, this is of course easy to set up using breakout rooms in Zoom or whatever platform you are using.

The mediator’s role during this stage is to tease out what the real issues are, and where a possible area of agreement might lie.

Remember that the mediator won’t share anything they’ve learnt from one side without explicit permission. That allows each side to speak quite freely with the mediator, confident that they won’t be undermining their own case in front of the other side.

This part of the process can take hours. Hours of careful listening, discussing, shuttling back and forth. The mediator will probe and challenge each party carefully. Is xyz really the most important issue for you? Tell me more about why xyz is so important? What do you think the other side thinks of xyz? What happens if you don’t reach a settlement today? And so on.

Sooner or later, though, the outline of a possible agreement will usually appear. The parties inch closer to a place where they will both be satisfied, perhaps even both be happy. The mediator will help clarify where they agree, and where there are still gaps.

The vast majority of mediation sessions do reach agreement. But only because both parties choose to agree. There is no obligation, and of course the mediator cannot impose a settlement on anyone. Even if you don’t settle, you are likely to at least be left with a much clearer picture of the other side’s position, and a better understanding of your own.

Discourage litigation. Be thoughtful. Think win-win.