Figure 12.4 The Mediation Process

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1. Open the mediation in a joint session

See Figure 12.3

2. Factfinding Session with Party 1

A.Preliminaries

  • ‘Thank you for giving me your opening statement. Is there anything you want to add to that, that you didn’t feel you could say in joint session?’
  • Confidentiality: everything is confidential; ask parties to keep it so. Nothing must leave the room without the parties' express permission.

B. Obtain facts and feelings

  • ‘Can you tell me in your own words why you are here today?’
  • Open questions, extenders, empathy, summarise

C. Get to the heart of the matter and summarise the party’s priorities and needs

  • ‘I’m hearing you say that your main concern is X, is that correct?’ ‘Do you have any other concerns?’
  • ‘Who else might be affected by this decision?’
  • Acknowledge emotions: ‘You’ve told me you’re feeling . . .’, ‘How are you feeling about this?’
  • ‘What are the obstacles to agreement?’

D. Exit

  • ‘We have discussed the issues which are important to you. While you are waiting outside, could you consider what are the key issues, in order of importance to you?’
  • Confidentiality reminder

3. Factfinding Session with Party 2

As step 2, but in individual session with Party 2

4. Cost Benefit Analysis Session with Party 1

A.Preliminaries

  • Confidentiality reminder
  • ‘I told you in open session I would need to play devil’s advocate, to give you a better understanding of what is going on here’
  • ‘I asked you to think about what your key priorities were’

B. Visualise dispute continuing

  • ‘How will it impact on you if this matter doesn’t settle today?’
  • Reality check costs, time, prospects of success

C. Visualise conflict-free future

  • ‘Imagine you wake up tomorrow and this matter has been resolved. How would you feel?’

D. Exit

  • Set task eg ‘What needs to happen now to prepare to enjoy the future you’ve just imagined’
  • Confidentiality reminder

5. Cost Benefit Analysis Session with Party 2

As step 4, but in individual session with Party 2

6. Negotiation Session with Party 1

A.Preliminaries

  • Confidentiality reminder
  • Summarise previous session (4) –‘Is that correct?’

B. Offers

  • ‘I asked you to consider what needs to happen next to move forward. Have you clarified the terms of any offer?’
  • Clarify terms of any offer
  • SMART test offer: Measurable, Achievable, Realistic, time-bound (see 18.2.5.2)
  • ‘How do you think the other party might respond to . . .?’
  • Refine and exchange offers if required

C. Exit

  • ‘Thank you. Can you think about your offer and what if anything you might like to add, or how you might amend it, and we can discuss in our next private session’.
  • Confidentiality reminder

7. Negotiation Session with Party 2

As above, but in individual session with Party 2

8. Refine and make a note of Party 1’s offer

A.Preliminaries

  • Confidentiality reminder
  • Remind of aim—to reach an agreement satisfactory to both parties.
  • ‘You are now at the stage where I can take your offer to the other side if you feel ready’

B. Refine offer

  • Recap offer from session 6
  • ‘At the end of the last session, I asked you to think about your offer and what, if anything, you might like to add, or whether you would like to amend it in any way’
  • Amend or add to offer SMART test changes (see 18.2.5.2)

C. Make a note of offer

  • In full
  • Ensure understand rationale behind offer, including figures
  • Obtain authority from Party 1 to disclose to Party 2

D. Exit

  • Confidentiality reminder—covers everything except authorised disclosure of offer

9. Convey Party 1’s offer to Party 2 and make note of any counter-offer

    A.Preliminaries

    • Confidentiality reminder
    • Remind of aim—to reach an agreement satisfactory to both parties
    • ‘I have been asked to put to you an offer from Party 1. I appreciate you will want to discuss this, and I am bound first to disclose the offer to you, then you can discuss your reaction.’

    B. Put offer

    • Do not take a counter-offer first
    • Gauge reaction

    C. Formulate counter-offer

    • SMART test counter-offer (see 18.2.5.2)

    D. Make a note of counter-offer

    • In full
    • Ensure understand rationale behind counter-offer, including figures
    • Obtain authority from Party 2 to disclose to Party 1

    E. Exit

    • Confidentiality reminder—covers everything except authorised disclosure of counter-offer

10. Close

  • Thank parties
  • Make clear that any agreement reached in the mediation will not be binding until it is in writing and signed by all of the parties
  • Draft and ensure everyone signs the Settlement/Mediation Agreement
  • Confidentiality reminder

1. Open the mediation in a joint session

See Figure 12.3

2. Factfinding Session with Party 1

A.Preliminaries

  • ‘Thank you for giving me your opening statement. Is there anything you want to add to that, that you didn’t feel you could say in joint session?’
  • Confidentiality: everything is confidential; ask parties to keep it so. Nothing must leave the room without the parties' express permission.

B. Obtain facts and feelings

  • ‘Can you tell me in your own words why you are here today?’
  • Open questions, extenders, empathy, summarise

C. Get to the heart of the matter and summarise the party’s priorities and needs

  • ‘I’m hearing you say that your main concern is X, is that correct?’ ‘Do you have any other concerns?’
  • ‘Who else might be affected by this decision?’
  • Acknowledge emotions: ‘You’ve told me you’re feeling . . .’, ‘How are you feeling about this?’
  • ‘What are the obstacles to agreement?’

D. Exit

  • ‘We have discussed the issues which are important to you. While you are waiting outside, could you consider what are the key issues, in order of importance to you?’
  • Confidentiality reminder

3. Factfinding Session with Party 2

As step 2, but in individual session with Party 2

4. Cost Benefit Analysis Session with Party 1

A.Preliminaries

  • Confidentiality reminder
  • ‘I told you in open session I would need to play devil’s advocate, to give you a better understanding of what is going on here’
  • ‘I asked you to think about what your key priorities were’

B. Visualise dispute continuing

  • ‘How will it impact on you if this matter doesn’t settle today?’
  • Reality check costs, time, prospects of success

C. Visualise conflict-free future

  • ‘Imagine you wake up tomorrow and this matter has been resolved. How would you feel?’

D. Exit

  • Set task eg ‘What needs to happen now to prepare to enjoy the future you’ve just imagined’
  • Confidentiality reminder

5. Cost Benefit Analysis Session with Party 2

As step 4, but in individual session with Party 2

6. Negotiation Session with Party 1

A.Preliminaries

  • Confidentiality reminder
  • Summarise previous session (4) –‘Is that correct?’

B. Offers

  • ‘I asked you to consider what needs to happen next to move forward. Have you clarified the terms of any offer?’
  • Clarify terms of any offer
  • SMART test offer: Measurable, Achievable, Realistic, time-bound (see 18.2.5.2)
  • ‘How do you think the other party might respond to . . .?’
  • Refine and exchange offers if required

C. Exit

  • ‘Thank you. Can you think about your offer and what if anything you might like to add, or how you might amend it, and we can discuss in our next private session’.
  • Confidentiality reminder

7. Negotiation Session with Party 2

As above, but in individual session with Party 2

8. Refine and make a note of Party 1’s offer

A.Preliminaries

  • Confidentiality reminder
  • Remind of aim—to reach an agreement satisfactory to both parties.
  • ‘You are now at the stage where I can take your offer to the other side if you feel ready’

B. Refine offer

  • Recap offer from session 6
  • ‘At the end of the last session, I asked you to think about your offer and what, if anything, you might like to add, or whether you would like to amend it in any way’
  • Amend or add to offer SMART test changes (see 18.2.5.2)

C. Make a note of offer

  • In full
  • Ensure understand rationale behind offer, including figures
  • Obtain authority from Party 1 to disclose to Party 2

D. Exit

  • Confidentiality reminder—covers everything except authorised disclosure of offer

9. Convey Party 1’s offer to Party 2 and make note of any counter-offer

    A.Preliminaries

    • Confidentiality reminder
    • Remind of aim—to reach an agreement satisfactory to both parties
    • ‘I have been asked to put to you an offer from Party 1. I appreciate you will want to discuss this, and I am bound first to disclose the offer to you, then you can discuss your reaction.’

    B. Put offer

    • Do not take a counter-offer first
    • Gauge reaction

    C. Formulate counter-offer

    • SMART test counter-offer (see 18.2.5.2)

    D. Make a note of counter-offer

    • In full
    • Ensure understand rationale behind counter-offer, including figures
    • Obtain authority from Party 2 to disclose to Party 1

    E. Exit

    • Confidentiality reminder—covers everything except authorised disclosure of counter-offer

    10. Close

    • Thank parties
    • Make clear that any agreement reached in the mediation will not be binding until it is in writing and signed by all of the parties
    • Draft and ensure everyone signs the Settlement/Mediation Agreement
    • Confidentiality reminder
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