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Introduction to Mediation and Arbitration
Basic Principles of Negotiation, Mediation & Arbitration
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Overview of the Stages of Mediation

From Nelson on ADR, Thomson Carswell, 2003)

(a) Pre-Mediation

  • Involvement by the mediator at this stage will depend upon the framework in which mediation occurs. If there is an established mediation process in an organization or through a service provider, much of the pre-mediation may take place on an administrative level. Where the mediation must be custom designed, there will be greater pre-mediation involvement on the part of the mediator.
  • Initial contact with the parties.
  • Educating the parties about the process and establishing the ground rules for mediation.
  • Mediation Agreement/Mediation Rules.
  • Begin to set the tone for effective mediation.
  • Identifying the time, venue and attendees.
  • Identifying the information needs of the parties and the mediator.
  • Obtaining mediation briefs from each party.
  • Establishing credibility of the process and the mediator.
  • Preparing the mediation site.
  • Preparation for the mediation session.

(b) Introduction

  • Introduction of participants, establish rapport, set positive tone.
  • Description of the process.
  • Establishing “buy-in" to the ground rules, execution of mediation agreement, verification of time frame.
  • Clarification of roles and behavioural guidelines.
  • Verification of authority to settle.
  • Obtaining commitment to explore options and demonstrate flexibility.
  • Clarification of the use of caucus and confidentiality.
  • Opportunity for questions.

(c) Identifying Issues/Setting Agenda

  • Opening statements from each party establishing the issues.
  • Identification and agreement upon broad topic areas and key issues.
  • Identification of areas of agreement.
  • Expression and understanding of each party's point of view.
  • Neutral organization and framing of the issues.
  • Agreement on the topics for discussion and the sequence.

(d) Discussion/Identifying Interests

  • Exchanging of information and ensuring understanding.
  • Probing for interests — substantive, procedural, psychological.
  • Identification and exploration of assumptions.
  • Breaking down issues into manageable components.
  • Searching for objective criteria.
  • Discourage “bottom lining".
  • Backing up from positions to find common ground.
  • Identification of points of agreement and overlapping interests.
  • Maintaining pace and movement.
  • Building empathy and managing emotional climate.

(e) Negotiation/Considering Options for Settlement

  • Generation of options.
  • Offers and counter offers.
  • Solidifying and building on points of agreement.
  • Caucus.
  • Building on overlapping interests (usually procedural and psychological).
  • Evaluating BATNAs — risk analysis/cost-benefit analysis.
  • Testing options using objective criteria developed by the parties.
  • Reality and practicality checks.

(f) Final Stage

  • Probing and clarifying agreements reached to eliminate ambiguity.
  • Documenting agreements.
  • Agreeing on procedural and implementation steps.
  • Developing agreement on alternative processes if a final agreement is not reached.
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