What Happens on the Day?
These are the stages in a typical mediation:
- 1. Everyone gathers at the agreed venue and time.
- 2. The mediator greets them and shows them to their separate rooms, being careful not to be more friendly to one side than the other. He may have an inconsequential chat with each group to put them at their ease, and ask each to sign the master copy of the Agreement to Mediate which has been distributed previously.
- 3. Each party is given the opportunity of a brief conference with their advisers. The mediator checks that everyone is ready, and then he calls them all together.
- 4. Everyone gathers in the main room around the meeting table, with the mediator in the chair and with claimant and defendant (and their advisers) on opposite sides.
- 5. The mediator introduces himself and asks everyone to do the same. He then explains his mediation experience and the process of mediation, to build the parties' confidence both in the mediator and in the mediation process.
- 6. The mediator ensures that one person on each side (or someone who is contactable at any time) has the authority to settle the dispute on whatever terms may be agreed.
- 7. The mediator explains the without prejudice nature of all discussions on the day, and promises that he will destroy his file and all his notes at the end of the day, whether or not the mediation is successful.
- 8. Each party or their lawyer then explains the dispute from their point of view, in a presentation typically lasting no more than 5 minutes. The presentation is given without interruption, though the party may add comments to the representative's presentation.
- 9. If the mediator considers that some common issues may be discussed, there will be a discussion with everyone present, for that purpose. Sometimes this amounts to no more than preparation of an agreed list of issues to be discussed privately.
- 10. The parties then go into their separate rooms, and the mediator moves from one to the other, holding confidential discussions. He may make notes; mainly he listens very carefully. Matters which he thinks would be helpful to share with the other side are shared only with express permission. If a party does give permission, the mediator will share those matters only when he considers that they will be most helpful in securing an agreement; he must never be seen as a messenger or as an advocate for the other side.
- 11. By addressing less contentious matters first, the mediator encourages the habit of saying yes; more difficult issues are put on the back burner, to be addressed when the parties are confident that progress is being made.
- 12. By these means, only the mediator sees the full picture, and he uses his skills and that full knowledge to draw the parties together.
- 13. If some issues are agreed, the mediator may decide to draw the parties together to clarify them.
- 14. Conversely, if a party wishes to abort the process, the mediator draws the parties together to warn them of the consequences. That has happened many times in Chris Makin's mediations, and there is usually a low point where it seems the process has failed; but almost always, the parties go on to reach agreement.
- 15. When agreement is reached, the parties come together and, with the mediator's help, a legally binding agreement is drawn up and signed by everyone.
- 16. The mediation is then complete, and it is merely necessary for the claimant's solicitor - or the claimant if acting in person – to inform the court that the matter is settled.
- 17. There are no other formalities to follow, and the parties can now get on with their lives, knowing that this dispute is at an end.