Mediation is party centric, meaning that it is focused on the needs of the parties. With guidance from the mediator, parties have a lot of power to determine the process of mediation.
Generally parties are content to be guided by the mediator as to the best structure for the mediation session.
- Introduction
Typically, the mediation session will begin by the mediator introducing themselves and the process. They may spend some time clarifying what the stages of the mediation will be. Even though you may have discussed this with the mediator already, just like an airline safety briefing it is important to have this time. The mediator will be doing many things during the introduction, including setting a tone of polite and constructive communication for the session.
- Party statements
Then each party may explain the issue from their perspective. This is important as it allows everyone the chance to explain what is important to them and what problems have led to the mediation session.
This can be a time of learning as well. It may be that you have spent much time telling this dispute story to family and friends without considering how the other side may see it. Or it may be that one of the reasons you want to mediate is that you want the chance to tell your story to the other side, so that they can hear about the impact of the dispute on your life.
Following each side’s story the mediator may ask questions to clarify their understanding.
- Common ground
In the Hong Kong process model, the mediator would typically see if there is any common ground that can be identified. This means are there any points on which you both agree – even if you were unaware of them. Although your relationship has disintegrated now, perhaps you both acknowledge that at one time this was a healthy and productive relationship. Acknowledging these points can be very helpful to setting a good atmosphere for the discussion.
- Agenda setting
Then the mediator may suggest the issues, which they have identified and work with the parties to set an agenda for the session. This is also an important step. You may not have been able to agree on anything with the other side for a long time. Setting an agenda together is a concrete example of how you can work with the other side to accomplish something.
- Joint session
Usually the session will include discussion of the agenda items. This is called a joint session i.e. all the parties are in the room. During the session, either party or the mediator may decide that it would be beneficial for the mediator to meet privately with each party. This is known as a caucus.
- Caucus
The mediator during the caucus will speak confidentially with each party. In Hong Kong the normal practice is that anything you say to a mediator during the caucus is confidential, unless you give them permission to share the information with the other side. However, in other countries, mediators may tell you that if you want something to be treated as confidential you must tell them. Be careful and note how the mediator will treat your conversation.
The caucus can be very helpful. Sometimes parties need a break from the joint session. It can become tense and stressful during the joint session and the caucus can provide some breathing space. There may be information that you do not want to share with the other side, but you do want to share with the mediator. You may want to rehearse how to make an offer or see if that offer is realistic. These are all things that can happen during the caucus.
- Offer / counteroffer
At some point either in joint session or caucus, an offer may be made. This may lead to a counter offer or acceptance. This stage of the mediation can last for some time.
- Settlement
If an offer is accepted, then the mediator will help the parties to prepare a settlement agreement. If both sides have lawyers then the mediator will usually get the lawyers to prepare the draft. If there are no lawyers present then usually the mediator will prepare the draft settlement agreement.
- No settlement
If no offers are accepted then the mediation may continue or it may come to an end. If both sides feel that they have explored all the options and are still at an impasse then they may terminate the mediation without a settlement.
- Termination
If the mediator feels that there is no progress or has ethical concerns about the mediation, he may terminate the mediation.