How Does a Mediation Process Work?
How Does a Mediation Process Work?
A mediation process follows a certain pattern which consists of several different phases that are transparent to the parties at all times. In my work, I would normally proceed like this:
After our first telephone conversation or first face-to-face meeting, I would arrange for an introductory meeting which all parties should attend. We would discuss at that meeting whether mediation is generally an option for you and the other parties, what each of your expectations, wishes and concerns are in respect of mediation and I would explain to you the basic principles of mediation and the costs for my work. Where appropriate, we would also discuss whether it makes sense to have a co-mediation in your particular case. I can also lead the mediation in English if you request.
If you should decide to enter into a mediation with me based on this discussion, I would send you an engagement letter for your signature which would serve as the basis for our cooperation and contain all of the important principles of mediation. We could then discuss any items which were unclear.
Collection of Issues
The purpose of the first mediation session would be to determine the issues which you want to discuss in the mediation. Each party can name the issues which are important to it. We would then discuss the order in which you want the issues to be addressed. In addition, we would discuss how the communication between the parties at the sessions should be in order for you to reach the best possible outcome.
I would write down your key statements and any interim results at all of our meetings on a flipchart so that everyone in the mediation session can see them. You would receive a copy of these flipchart notes after each session and, upon request and at an additional cost, a written protocol of the session.
Determining Interests and Needs and Fairness Criteria
Before we begin to look for possible solutions, I would attempt to figure out with you what is really important for each of you with regard to the respective issues. Each party has the opportunity here to discuss their interests and needs but also their fears underlying their positions and to have the other party listen to them. This process will allow the parties to understand the other´s position. We will also spend time to discuss the fairness criteria which you think should be applied in order to come to an appropriate solution. The final solution will be measured against the interim solutions found during this phase.
Finding a Solution
The next phase is the most creative phase within the mediation process. In this part of the process, you will try to come up at first with a broad range of possible solutions for each individual conflict issue in order to then reflect about the most useful approaches. At this stage, you can also involve third party advisors or other third parties in the process whose opinion is important to you. Ideally, at the end of this phase, which usually takes a number of sessions, a final agreement is reached on all issues. It is also possible that the parties only reach partial solutions, interim solutions or temporary solutions with the goal of taking up the remaining points at a future mediation session.
Legally Binding Agreement
Once you have reached a (preliminary) solution together and we have put it in written form, each of you should consult with an external lawyer to have it explain the legal background to you and review the agreement from a legal point of view. To the extent that you decide to execute the agreement based on the information obtained from counsel, possibly incorporating certain amendments, this agreement would be entered into between the parties in legally binding form. It may be necessary to have the agreement notarized or memorialized in any other legal form, depending on the circumstances.
Once a legally binding agreement has been entered into, the mediation is over.