What to expect in a mediation

CEDR Solve is the UK’s leading provider of commercial mediation services and has handled over 5,000 mediation referrals. The process is flexible and each mediation will vary depending on the nature of the dispute and the parties’ needs. This paper summarises what parties can expect in a CEDR Solve mediation.

Before the mediation
The parties are expected to exchange case summaries and supporting documents with each other and the mediator at least one week before the mediation. These documents should be brief and guidance on them is given in CEDR Solve’s guide to type and amount of documentation.

The mediator will almost certainly introduce him/herself to each party or their legal representative before the day, usually by telephone. The mediator may ask questions about the documents received and will check that each party will be represented by someone with the requisite authority to settle. The mediator will reinforce that their role is not to propose or impose any solution on the parties, but to facilitate their negotiations. The mediator may also ask the parties to begin thinking about their commercial interests in the dispute, rather than the purely legal arguments.

At the mediation
There will be a room large enough to seat all participants in the mediation and this will be used for joint meetings. In addition, each party will have their own room and this will be used for private meetings with the mediator.

It is CEDR Solve’s policy for an assistant mediator to attend each mediation. Every assistant mediator is a CEDR accredited mediator and can provide valuable assistance to the mediator and parties.

Beginning the mediation
The mediator will often begin with informal introductions in the parties’ private rooms. Then, ordinarily, the mediation will begin with a joint meeting.

At this initial joint meeting the mediator will establish ground rules for the day, reaffirming the strict confidentiality of the mediation and asking each party to respect the other side's right to be heard.

The mediator will ask each party to make an opening statement (see CEDR Solve’s guide to making an opening presentation). This is a summary of the key issues making up their case, not a summary of the documentation. It will often be the first time each party will have heard the other’s point of view first-hand. The opening presentation can be made either by the lawyer or party representative, but we recommend the business principals become involved from an early stage.

Private meetings
Following the joint meeting the mediator is likely to invite the parties to go to their private rooms where he will spend time talking with them in confidence. During this time the mediator will ask the parties about their expectations and will ask them about the strengths and weakness of their case (reality testing). It is important to remember that nothing will be repeated to the other party/ies unless the mediator is given express permission to do so.

You should be prepared for long periods of waiting, while the mediator is talking to the other party/ies. Sometimes the mediator will set a task, such as re-assessing risk analyses or testing alternative solutions in the light of developments that have emerged during the day.

Sometimes parties become concerned that the mediator is spending ‘too long’ with the other party. Don’t worry – this is natural! It can be a sign of progress. Parties can also feel that progress is very slow during the early stages of the mediation session. This is also natural and the mediation will gather momentum as parties come closer to an agreement.

Joint meetings
The mediator may decide that progress would be made by bringing the parties together again. At other times the mediator may suggest bringing together just the lead negotiators or lawyers or experts to change the dynamics of the mediation and bring speedier progress.

Settlement
A settlement is reached when the parties come to an agreed solution. The lawyers present will draw up an agreement which, when signed, becomes binding. It is therefore essential that each party is represented by someone with full authority to settle the dispute.

Non-settlement
Disputes which do not settle on the day of mediation can often settle shortly afterwards as a result of the negotiations during the course of the day and the momentum gathered. Mediations which do not settle on the day often lead to fruitful face-to-face negotiations. In the event of non-settlement it is likely that the mediator will ask the parties’ permission to contact them within the following week or two. Further progress can usually be made once the parties have had time to reflect on the issues that have emerged during the mediation.

Where parties cannot reach a settlement, they can leave the mediation and pursue arbitration, litigation or any other dispute resolution procedure. Nothing said or done in the mediation can be referred to outside the scope of the mediation.

After the mediation
The mediator will contact the parties to check that there are no loose ends. CEDR Solve will also contact the parties for feedback on the mediator’s performance and the service provided.

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