Mediation : a practical guide

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Non-binding until agreement signed. The basic procedure in outline 1.

Introduction and opening statement by mediator — in full session 2. Opening statements from each party — in full session 3. Private sessions between mediator and parties 4.

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Closing statements from each party; agreement; in full session. We start at stage 2 — Opening of the Mediation itself. The second part covers:- Mediator is impartial facilitator Mediator has no conflict of interest Mediation apportions no blame and makes neither judgment nor award The process is voluntary and a party can leave at any time All is confidential, privileged and without prejudice All is non-binding until agreement signed. At this point the mediator will return to a full session The private sessions are confidential within themselves: nothing said by one party may be disclosed to the other party without express consent Mediation is confidential and without prejudice: no concession, suggestion, statement or proposal made may be used later in any arbitration or litigation proceedings.

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Ground rules, covering:- Facilities — tea, coffee, WC etc Phones off — no interruptions or recording Respect: be polite, no abuse, do not interrupt a speaker, take notes and mention later Time constraint Is all the above understood? Any questions at this point? It is normal practice for the claimant to open, but where a counter-claim exists, the Mediator may ask the counter-claimant to start.

The purpose here is to summarise in outline — not detail — their respective positions as already described in their written bundles under Stage 1 Preparation. After the opening statements, the mediator invariably calls for private sessions, turn and turn about with the parties. Continuing Private Sessions As exchanges continue, the parties may start to sense that compromise and concession could work At this point, the private sessions move gradually from exploration to negotiation The mediator will avoid detail. Seeking blame is not the game.

The devil is NOT in the detail.

The mediator will continually be re-framing statements and summarising what has been said to confirm that his understanding is correct. Continuing Private Sessions From negotiation — and compromise — flows the possibility of resolution. Where specifically permitted, such overlapping interests and needs may be shared with the other party.

ADR, Conflict Analysis and Resolution

Around this time, the mediator may talk about what options might be available to a party if mediation fails; that is to say — What would arbitration or litigation cost? Whilst in no way wishing to denigrate the valuable contribution which CEDR has made to the development of mediation in Hong Kong, it is after all not a Hong Kong institution and the book perhaps is a little misleading in the way that CEDR is presented Susan Macnaughton Consultant Gall.


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Mediation: A Practical Guide for Lawyers - Mantle, Marjorie -

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