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THE PRACTICAL COMMENCEMENT OF THE MEDIATION PROCESS

Lay persons are often uncertain about how to go about the actual commencement of the mediation process. It is in fact quite simple and easy to embark on.

Commercial Mediation – A User’s Guide by John Brand, Felicity Steadman and Christopher Todd 2nd Edition 2016 (p.64-65) provides readers with guidance as to the practicalities and preliminary considerations to be made when embarking on the mediation process.

There are various avenues which may lead you to the mediation process. Parties might enter mediation when required or recommended by statute. Additionally, a court may refer a dispute to mediation; alternatively the contractual provisions of an agreement may also stipulate that mediation must be used for all future disputes between the contracting parties. In other cases, parties may agree to use mediation on an ad hoc basis for a single dispute.

What should you usually consider before embarking on mediation?:

  • Who are the parties to the dispute and who will attend the mediation?
  • What dispute or disputes are to be mediated?
  • Is a mediation agency or administrator to be used?
  • Who will determine the process to be followed in the mediation?
  • Who will be the mediator?
  • What qualifications should the mediator have? / What level of experience should the mediator have?
  • How should the mediator accept an appointment?
  • In what circumstances should the mediation be terminated?
  • Should time limits be placed on the mediation?
  • How should confidentiality apply?
  • What will be the status of any threatened or pending arbitration or litigation?
  • What will be the status of any agreement reached in the mediation process?
  • Will the parties be expected to have authority or a mandate to negotiate?
  • On what dates and times will the mediation take place?
  • Where will the mediation take place and what venue will be used for the mediation?
  • Who will be responsible for the costs of the mediation?

Most of the aforementioned issues are usually regulated in an “agreement to mediate”. An agreement to mediate is an agreement prepared by the mediator and circulated to the parties for signature before the mediation process commences, thus ensuring that all parties are of one mind as to the conduct of the proceedings.

A  Mediation Agreement ensures that all parties (including the mediator) are identified, the role of the mediator is explained, the question of costs is dealt with, and provides a brief synopsis of the practical procedure to be followed including the length of time/days for the mediation process, the importance of confidentiality etc.

Once the mediation agreement has been signed, the mediation process commences per the guidelines provided in the agreement.

The commencement process is that simple.

Prepared by: Whitney Maclons | Associate | Dispute Resolution: Litigation & Arbitration

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)