Civil Engineering Reference
In-Depth Information
CHAPTER FOUR
Preparing for Mediation
The next four chapters provide a stage-by-stage analysis of the media-
tion process (preparing, presenting, negotiating, concluding) with the
user (party or lawyer) in mind. Most mediators say that few people
use mediation to best advantage. This chapter should enable, and en-
courage, readers to do so. Commercial mediations almost always have
lawyers present so there is an assumption (and one of the few rules is
that mediators should never make assumptions!) in what follows that
lawyers will be present and assume leadership of the team.
4.1
Typical framework
Prior to the day there will be some preparation work and contact be-
tween the mediator and the lawyers (and possibly also the parties). On
the day, most mediators will meet the parties and spend some time with
them in private. At some stage the mediator will bring the parties to-
gether in the main room and invite them to summarise the key issues,
why they feel strongly about them and how they might be moved for-
ward towards settlement. Some (probably more experienced) mediators
will keep that first joint meeting going for quite a long time, perhaps two
or three hours; others will break immediately after the opening state-
ments. But at some stage the mediator will hold a series of private meet-
ings with the parties in their rooms. There may also be working group
meetings (e.g. lawyer/lawyer or expert/expert) - whatever seems to be
useful to help the dispute move towards settlement. Mediation is a flex-
ible process and the mediator should be flexible, and sensitive, enough
to vary the framework of meetings to suit the particular case and parties.
A typical commercial mediation will have a framework something like
that shown in Figure 4.1.
4.2
Stages of mediation
If there is a theory of commercial mediation it is that there are typically
five stages (Figure 4.2). When in a mediation, it is probably not so easy
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