The usual mediation process is that the parties to a dispute jointly appoint an independent third party (the mediator) and fix a date and venue for the mediation. The venue may be at one of the parties’ or their lawyers’, premises or on neutral ground. Beforehand they exchange short position statements setting out their case, with reference to an agreed bundle of relevant documents.
On the day there is usually an opening meeting chaired by the mediator with all parties, including their lawyers (if present), at which each party sets out their case and has the chance to ‘get things off their chest’ and also, which is sometimes overlooked, to listen carefully to what the other party has to say.
Each party then moves to their own room and a series of separate confidential discussions takes place with the mediator who will try to find out what issues lie behind the dispute and whether there are any common interests which may facilitate a settlement.
In time offers to settle usually emerge from one or both sides which the mediator takes to the other side, on a without prejudice basis and when authorised to do so.
When settlement terms are reached the parties then sign a formal agreement at which point, but only then, is the agreement legally binding on them. The settlement agreement remains confidential, unless all parties agree otherwise.
It is important to note that a mediator facilitates the process and helps the parties to agree a solution; he or she does not act as a judge or arbitrator and has no power to impose a solution on the parties, who retain control of the process throughout. Nor is it the mediator’s role to give legal advice to either party or to draft or advise on the settlement agreement.
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