a typical mediation meeting...
Each party has a private room that they may regard as their 'home base' for the mediation. There will also be a separate 'joint session' room.
The Mediator will greet the parties at the beginning of the Mediation day, ensure they are settled into their own rooms, and then all parties will meet in the joint session room at a specified time.
In the opening session, where all parties are present, each party will have an opportunity to present their case to the other party, and incidentally to the Mediator. The opening statements may be time limited. It is not an adversarial hearing and parties are encouraged to explain and discuss their positions rather than present argument and rebuttal.
The Mediator will then either continue joint discussions, or most probably will ask the parties to return to their own rooms. The mediator will then meet with each party in turn, inviting the parties back for joint sessions from time to time. The Mediator may choose to change the venue of a session or a discussion, such as a stroll outside, if the Mediator thinks it might be helpful.
The Mediator will continue to move between the parties, discussing their cases with them. If and when appropriate, the mediator will transmit information between the parties. Everything discussed between the mediator and a party remains private unless or until the Mediator is authorised to disclose it to the other party.
The Mediator is neutral. The Mediator will not favour one party over another, and will not give legal or other advice to any party. The Mediator may have private views about proposals made, but will not allow those views to interfere with the process. Nor will the Mediator attempt to guide or influence a party whether or not it may be in that party's best interests to make or accept a proposal. The Mediator will comment upon proposals made by one party direct to that party only to 'reality-test' the validity of the proposal or to test whether that party has considered what the effect of the proposal might be on the overall negotiation. The Mediator will never 'reality-test' or in any way deliberately expose one party's weaknesses during a joint session.
It is part of the Mediation Agreement that everything discussed during the course of the Mediation is private to the parties, their advisors and to the Mediator. The effect is similar to 'without prejudice' negotiations or correspondence. So anything discussed between the mediator and a party remains confidential, and, equally importantly, anything said in the joint session room also stays within that room. In other words, nobody present is allowed to discuss what happens during the mediation later or outside the mediation.
Remember that the Mediator does not decide who is right or wrong, nor make any other kind of judgment or finding. The parties reach their own solution guided by the Mediator. It is not like court or arbitration where the Judge or Arbitrator imposes a judgment or award.
It follows that the parties should concentrate on persuading each other of the relative merits of their cases, not the Mediator. At the end of the day it does not matter what the Mediator thinks, it matters only what each party has realised about their own and the other parties' cases, and what agreement should follow from that.
When the final settlement terms have been agreed the deal will be recorded in writing, more or less formally as is appropriate to the circumstances. Once signed, the terms of settlement become a binding and enforceable contract between the parties.
If settlement is not reached, the parties may decide to have another day, or to continue negotiations on their own, or to return to the litigation. The Mediator may occasionally close the Mediation if it seems that there is no realistic likelihood of settlement. Even if no settlement is reached, it is frequently the case that the parties settle shortly afterwards anyway.
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