This article discusses the classic process of mediation and what is involved in a mediation session from Dr Grant Morris and Annabel Shaw’s commentary (A to Z of New Zealand Law — Alternative Dispute Resolution — Mediation (online ed, Thomson Reuters)).
Mediation is an efficient, adaptable, and cost-effective option compared to court proceedings. Mediation allows parties in a dispute to communicate and work through their issues. A mediator assists in guiding the conversation, identifying critical points of conflict, and helping both sides find a mutually agreeable solution.
While there is no set process of mediation, facilitative mediation is the usual model. The three stages involved with facilitative mediation is pre-mediation, mediation session and post-mediation.
Pre-mediation consists of initiation, intake and preparation.
The initiation of mediation can happen through a contract clause, court referral, or through the parties’ representatives.
During the intake phase, the parties will be informed about the process and will be able to decide if mediation is suitable for them. Parties and mediators will also be able to build rapport.
The parties will be able to ask questions about the process during the preparation stage. They will then provide relevant information to the mediator and exchange information with each other. They will also agree on the venue and duration of mediation.
The mediator and parties will try to understand and define the issue and resolve it in the mediation session.
A mediation session usually includes a mediator’s opening, parties’ openings, mediator’s summary, joint discussion, negotiation, separate meetings, final decision-making, agreement and closing. The duration of this process will depend on the nature of the dispute.
The mediator during the mediator’s opening will remind the parties of the process and will help them to build trust.
The parties’ openings let the parties understand the legal issues, risks and other side’s perspective. The mediator will assist the parties to resolve the issues.
The mediator will then summarise each parties’ perspectives. This step allows the parties to hear the other side’s story through an impartial mediator.
The parties can then clarify and discuss the issues in the joint discussion. The mediator will guide the discussion and the parties can directly talk about the issues. This process will allow them to understand the relevant interests. The mediator will generally ask questions to assist the discussion.
During the negotiation and problem-solving phase, the parties will be able to consider the options for resolution. The mediator will guide the parties to be realistic and work through any deadlocks.
Mediation caucusing is the use of separate meetings between the mediator and the parties individually. This may happen at any stage of the mediation process. It can be used to discuss the conflict and overcome barriers and challenges of mediation. Mediation caucusing is discussed in our previous issue ‘Overcoming barriers and challenges of mediation’ article.
The final decision-making and agreement stage allows the parties to finalise the outcome. If the parties fail to reach a resolution, caucus sessions may be held to check if an agreement can be reached. The parties may also consider whether to pursue further mediation, alternative dispute resolution or litigation.
In the closing phase, the mediator will acknowledge the effort the parties have made, and the parties will be able to make comments.
After the conclusion phase, the parties may finalise or certify the agreements. Post-mediation may happen if a case was adjourned or if the parties were unable to reach a resolution.
At Norling Law, we are passionate about solving commercial disputes and legal issues.
We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and representatives, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through mediation.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
Brent is the Director of Norling Law. He has a wealth of experience in the District Court, High Court, Court of Appeal and Supreme Court. Brent is passionate about negotiating favourable outcomes for his clients and able to implement this in his daily negotiations.
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