Topic Five:
The Mediation Process
Reading:
Moore, 'The Mediation Process' pp66-67
University of Windsor Mediation Service 'Terms of Mediation'
There are many variants on the structure of the mediation process. However most mediators use a model which looks something like this
Moore's model (1997; see the excerpt in the Course Manual) is somewhat more complex - breaking down the process into twelve stages - but follows the same logical structure as the above.
The videotape which is contained in your course package - in which Janine Higgins conducts a mediation of a simulated case - follows a similar structure to this (the edited videotape you have focuses in particular on stages a. to d. in the above model).
Let's look at each of these stages in turn in a little more detail.
a. terms of mediation and introductions
Where the mediator sets out the basis on which the mediation will proceed, including an explanation of confidentiality, the role of the mediator, the 'groundrules' for the discussion, an overview of how the process will unfold, etc. Many mediators use fairly standard 'Terms of Mediation' (see the sample 'Terms' in the Course Manual) which they will ask parties to sign at the outset of the mediation.
b. opening statements by each side
Each side is asked to present their perspective on how the dispute arose. This 'opening statement' may be presented by the disputant him or herself, legal counsel, or both in turn. Most mediators would expect to hear at least some of this initial story from the client him or herself. It is helpful, especially in a facilitative mediation, for the opening statement to focus on describing rather than evaluating what has occured, and to be frank about the interests and values involved. Since the discussion will examine party interests and possible integrative solutions based on these, simply asserting legal rights is probably unhelpful and may only serve to further entrench the other side in their own position.
The opening statement serves a number of different purposes. It
c. agenda-setting
Most - although not all - mediators like to take some time after hearing opening statements to help the parties draw up an agenda to structure the remainder of their discussions. This is especially helpful where there are many issues; where one or both sides is concerned about getting 'their' issue acknowledged and on the table; and where a sense of structure and progress is important to all the participants.
Agenda items must be neutrally framed - they cannot simply be statements of position or demands. So for example, where there is a contract dispute with each side alleging different rights under the contract, an initial agenda item might read 'expectations and responsibilities under the original agreement' or more simply 'the original agreement', If it is a complex commercial contract, the different clauses and/or issues in dispute might then be itemised as sub-items below this neutral heading. Or where there is a dispute over monies owing and a counter-claim by the defendant, the agenda item might read 'financial outcomes/consequences' and then break down each head of claim as sub-items.
The mediator might also suggest to the parties that they consider as agenda items issues that would not generally be raised in conventional legal negotiations; for example, 'future relationship' or 'future dealing'. 'Privacy/ confidentiality' might also be a separate item (where one or both sides would like to ensure that not only what is discussed in mediation but also any outcome, even their attendance at mediation, remains a private matter).
d. exploration of issues and interests
Once an agenda structure is agreed (and this may be varied or added to at a later stage in the mediation), the parties will be invited to pick an agenda item and begin to discuss this more comprehensively. Initially it may be appropriate for each party to speak in turn, in the same manner as they did when presenting opening statements. Some mediators suggest that the parties begin with a relatively uncontentious agenda item, in order that there can be an immediate sense of progress. Others will simply invite the parties to decide where on the agenda they would like to begin. Some discussions are contingent and cannot be concluded until later items are resolved; in which case, the mediator will summarise progress and then continue on to the next item.
The focus in a facilitative mediation - for example in the videotaped mediation you are about to watch - is on exploring party interests in order to clarify how the dispute arose and what the parties now need in order to be able to resolve the matter in a manner that each considers to be fair.
e. option generation
Once there has been extensive discussion and exploration of the agenda issues and party interests, the mediator will suggest that the parties consider options for settlement. Usually a facilitative mediator will resist this occurring until there has been a full and frank discussion of interests and needs, in order to maximise the potential for an integrative solution that recognises each side's interests and can build on a wide range of possible options.
Option generation is often stimulated by 'brainstorming' - asking the parties to think of as many possible options as they can without prematurely evaluating them. This will produce a larger list of possible ideas than simply proceeding with offers.
Sometimes option generation is started in private caucus in order that the parties can feel comfortable that their ideas will not be regarded as commitments, but simply as a means of beginning a constructive dialogue on settlement options.
f. settlement and problem-solving or closure
Once the options are evaluated, the skeleton of an agreement may begin to merge. The mediator will work with the parties to finalise the details of their settlement agreement, assisting them with smoothing out any last-minute difficulties and keeping them on task and constructive. The mediator will often be able to anticipate possible problems with the drafting and implementation of the agreement and will help the parties to plan for these contingencies. The mediator must also ensure that each side is happy with the final agreement before this is commited to writing and signed (sometimes the mediator will draw up the agreement, sometimes the parties themselves or their lawyers will draft the final version).
If you have not already done so, please watch the videotape contained in your course package now. It is around 60 minutes in total length. You will see Janine Higgins structure the parties negotiations from the introductions through to exploration of options.
Your are invited to comment on how this process unfolds in Discussion Room Five. You may also wish to reflect, as you watch the videotape, on what 'style' of mediation you are seeing practised here (see Topic Three above), and its effectiveness.