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Although Mediations can be conducted in different ways , such as over the telephone in small claims and face to face over a number of days at different times of the proceedings in larger claims , in general in most formal mediations there are usually 6 steps or stages:- 1) Introductory remarks, 2) Statement by the parties, 3) Information gathering time, 4) Identification of the problems and issues, 5) Negotiation and generating options, and 6) Reaching and concluding an agreement.
The mediator will wait until both parties are present and then make introductions and will then give an opening statement. This outlines the role of the participants and emphasises the mediator’s neutrality. This session is often referred to as a Plenary Session where everyone involved is together in the same room.
Some mediators will make comments about what they see as the issues and confirm the case facts if case summaries have been submitted by the parties. Next, the mediator will define protocol and set the time frame for the process. Mediations can be short over a morning but are often all day and can run into several days in more complex cases. There will be a review of the mediation guidelines and the mediator will briefly recap what it is that he has heard as the issues.
The opening statement during the introductory remarks will set out the ground rules for the mediation. These ground rules are what help the mediation move along smoothly. The mediator will usually ask that if lawyers are present, they can confer, but will often encourage the clients to speak for themselves if they wish.
After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most often, the person who requested the mediation session will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party. If there are lawyers present who make the initial statement, the mediator will often then ask the parties themselves to also make a statement. The rationale behind the parties making statements is not a search for the truth but it is just a way to help solve the problem.
The mediator will often ask the parties open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties and will summarise often.
The mediator may decide to hold private sessions with both parties in order to move the negotiations along. The goal of the session is to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions. These discussions are confidential and the mediator will not disclose anything that is discussed in this private meeting to the other party without authority.
Methods for developing options for settlement may include group discussions with all the parties present, discussion groups or sub groups, developing hypothetical plausible scenarios, or a mediator’s proposal where the mediator puts a proposal on the table himself and the parties take turns to address and or modify it.
Once the parties are committed to achieving a negotiated settlement, the mediator may propose a brainstorming session to explore potential solutions. This can lead to a final agreement which will be committed to writing and signed by the parties which will in most cases be in full and final settlement of the claim or dispute as a whole.
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