Mediation is a collaborative process in which a neutral third party, called a mediator, assists the disputing parties and their legal representatives to explore their respective cases and then to bargain to achieve a settlement of the dispute. It is vital for all the parties to thoroughly prepare in order to actively participate in the mediation process. Without the active participation of the parties and their representatives, the case is unlikely to settle or the outcome is likely to be unsatisfactory.
Conflict diminishes trust and undermines relationships between people. The mediator works hard to gain the parties’ trust and to build trust between the parties. The principle role of the mediator is to facilitate discussions between the parties and to assist them in their negotiations to reach a mutually acceptable agreement that is enduring, legal and cost-effective. Although the mediator manages the process, the mediator does not judge, comment on the merits of the case, recommend or advise on any solutions and the mediator has no power to force a settlement. To be effective, the mediator must remain impartial, neutral, and free of favouritism, bias or prejudice both in conduct and appearance. Confidentiality is the cornerstone of a mediation process, and it is the role of the mediator to ensure the confidentiality of the process. A mediator must have good communication skills, competence in managing the mediation process, and credibility, and must be trustworthy.
Mediation is for and about the parties. It is a process in which the parties play a major and active role. Once the parties have agreed to mediate their dispute, they select a mutually acceptable mediator. This person should be trained and accredited as a mediator and should be a member of an accredited panel of mediators. Once the mediator has been appointed they will contact the parties to explain how the mediation process works, what to expect on the day of the mediation and how to prepare for the mediation. It is very important that the parties are well prepared to make the most of their mediation. This includes analysing and strategizing their case and securing a mandate to negotiate in the mediation. Of course, they must also ensure that the right people attend the mediation: people who understand the case and who have the authority to negotiate. At the mediation, the parties’ role is to present their case to the mediator and to the other party and to participate in good faith in the mediation process.
Lawyers play a crucial role in mediation guiding their clients before, during and after the process. The role of a lawyer before the mediation process is to provide both substantive and procedural advice to their clients: to explain the process to their client, to coach them on their participation, to work with their client to identify interests rather than merely positions, to undertake a risk analysis, and to develop possible strategies that may result in settlement. In the case of High Court Rule 41A mediations, the lawyers have significant responsibilities in relation to informing their clients about mediation and then of informing the Registrar of their clients’ decisions regarding whether to mediate or not.
At the mediation, lawyers assist their clients by, for example, making or contributing to the opening statements. During a mediation, the lawyer provides practical support and legal advice on the issues raised and they are also encouraged to actively participate in the wider problem-solving task. The lawyers are also responsible for drafting the settlement agreement, ensuring that it addresses the clients’ needs and that it is enforceable. After the settlement agreement is signed, it is the duty of the lawyers to ensure that any formalities that are required in terms of executing the agreement are completed. In the case of High Court Rule 41A, this includes filing a Joint Minute with the court Registrar within 5 days of the conclusion of the mediation, indicating whether a full or partial settlement was reached or whether the mediation was unsuccessful, and the issues on which agreement had been reached and do not require a hearing by the court. Lawyers act as supportive professional participants in a mediation who coach and assist their clients to navigate the process in a positive way.
Critical to the success of mediation is careful planning and preparation. Therefore it is essential for all the parties to understand what mediation is, the process involved, and its characteristics in order to fulfil their roles and responsibilities before, during and after the mediation process.
“Conflict lies at the core of innovation.” – Emanuel R. Piore