Mediation is a process by which the parties to a dispute with the assistance of a mediator (a neutral third party) identify the issues in dispute, develop options around those issues, consider alternatives and endeavour to reach an agreement.
The preliminary conference
The mediator will usually contact each party and arrange a separate preliminary conference. The purpose of the preliminary conference is to: answer questions, explain the mediation process and the underlying principles, explore whether mediation is the most appropriate process for the dispute, discuss the mediator’s role, confirm who will be attending the mediation and in what capacity, discuss the role of any advisers who will be attending the mediation, exchange documentation and if required set a timetable for the exchange of documentation, confirm the date time and place for the mediation.
The mediation
There are a number of stages in the mediation process.
Stage 1 – the mediator’s opening statement
The mediator’s statement will normally cover the following issues: the role of the mediator in the mediation. The mediator’s role is facilitary. The mediator does not impose decisions upon the parties, but is there to assist the parties to reach an agreement, the procedure that the parties will follow, the confidentiality of the mediation process. Generally the matters discussed in mediation and the documents prepared for mediation are confidential. However there are many exceptions to this rule. Often a mediator will use the expression “mediation is confidential unless otherwise require by law”, the authority of the parties present at the mediation.
The parties present at the mediation must have authority to settle the dispute, the time constraints of the parties present at the mediation. Mediations often continue into the evening. Consequently a mediator must know at the outset whether any of the parties have time constraints, the proposed rules of courtesy to be followed by the parties.
Step 2 – the parties’ opening statements
Each party will explain its position without interruption from the other party. At the end of each of the party’s opening statements the mediator will normally summarise the key issues raised by the party.
Step 3 – identifying the issues and setting the agenda
The mediator will list an agenda of issues for discussion and prioritise those issues in the order that the parties wish to deal with them.
Step 4 – exploring the issues –joint sessions
The parties will discuss the issues set out in the agenda in a joint session. The mediator will use his or her skills as a facilitator to keep communication open between the parties stick to the agenda and find common ground between the parties.
Step 5 – private sessions if necessary
The mediator may spend time privately with each party exploring the issues and reality testing each party’s position. The mediator will not discuss the matters raised in a private session with the other party unless he is specifically authorised to do so.
Step 6 – negotiation – exploring the options for settlement
The mediator and the parties will identify and explore options for settlement.
Step 7 – agreement
The mediator will ensure that any oral agreement reached between the parties is accurately reflected in a written agreement or heads of agreement.
Mediation is fast becoming a genuine alternative to litigation because mediation is generally quick, mediation is relatively inexpensive, mediation is private and confidential, mediation allows parties to have control over the outcome of the dispute, mediation allows for settlements that have commercial flexibility, mediation is less likely to destroy a business relationship.
If you have a dispute with a franchisee contact us so that we can help you to prepare a dispute notice and can advise you about, or attend a mediation with you.
