Overview of the Stages of Mediation From Nelson on ADR, Thomson Carswell, 2003)
- 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.
- Introduction of participants, establish rapport, set positive tone.
- Description of the process.
- Establishing â€œbuy-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 â€” substantive, procedural, psychological.
- Identification and exploration of assumptions.
- Breaking down issues into manageable components.
- Searching for objective criteria.
- Discourage â€œbottom 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
- Offers and counter offers.
- Solidifying and building on points of agreement.
- Building on overlapping interests (usually procedural and psychological).
- Evaluating BATNAs â€” 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.
- Agreeing on procedural and implementation steps.
- Developing agreement on alternative processes if a final agreement is not reached.