Conducting the mediation — overviewOrganising the mediation

The parties to a dispute (or more often their lawyers) can organise the mediation themselves or use an ADR company to organise it for them. A mediator will need to be found and a venue selected; it must have one room big enough for all the attendees, together with a room for each of the parties to hold their private (caucus) sessions. Documents should be prepared well in advance and copies sent to the mediator to give him/her plenty of time to prepare. The parties should also agree with their lawyers the roles they will play on the day.

Starting the mediation

The ADR clause in the contract from which the dispute arises may prescribe how the mediation should be initiated by one of the parties. If there is no ADR clause, the mediation may be started in any way the initiating party considers appropriate.

Lawyer's role in the mediation

Solicitors are obliged by their Code of Conduct and its guidance to discuss dispute resolution options with their client. Caselaw also dictates that such discussions should be undertaken routinely throughout the course of the matter.

At the mediation itself, the lawyer's role is one of adviser and should support the client rather than attempt to control the mediation. The normal adversarial approach undertaken by litigators should be modified and a more conciliatory role adopted.

The lawyer will be responsible for drafting any settlement agreement and should ensure that all the agreements reached are reflected in that document. It may also be necessary to draw up a Tomlin Order to stay any proceedings that are underway.

Stages of the mediation

Mediations are flexible and will evolve to suit the needs of the parties and the dispute. However, the opening phase tends to follow this pattern:

• mediator introduces himself/herself to the parties separately

• the parties and mediator meet in the same room and the mediator makes various introductions and outlines the process

• the parties give their opening presentations

• the parties go to their private rooms (caucus) while the mediator shuttles between them

• if the negotiations are successful, the parties will meet to draw up a settlement agreement

What happens after the mediation depends on how successful the process was; it may involve bringing the litigation to an end or continuing with it, attempting to settle through further negotiations or asking the mediator to make a non-binding recommendation.