Time in any mediation is often both limited and precious. Once it is underway there is little time for sorting out the preliminaries. As a result, it is customary for there to be contact between each of the parties (and/or their representatives) and the mediator(‘s staff) prior to kick-off. For a judicial mediation arranged through the Employment Tribunal this will normally be a joint Case Management Discussion, but for commercial CEDR mediations of the sort I conduct, the mediator will usually seek to speak to each protagonist or representative separately first.
This serves a number of purposes. It can deal with any outstanding administrative matters, especially to check that the mediation agreement (see next post) has been signed, and to ensure that my record of the parties’ names, contact details and intended attendees are correct. In addition, I want to be sure that both parties will have full authority to settle on the day if terms can be agreed – while there is nothing wrong with that authority being subject to a phone call to someone more senior, it is essential to ensure that that someone will be available if and when the need arises.
That prior contact is also very useful to me in clarifying the parties’ respective experience of mediation. Do they understand the ground rules about confidentiality, process, my neutrality and the outcome being in their hands, not mine? Even where lawyers are instructed I would sooner have this call with the parties themselves, since it is they and not their lawyers who must ultimately be happy with the process. However, this direct contact is not always feasible or indeed necessary if experienced representatives are acting.
If I have received all the mediation papers beforehand then I will use this prior contact to raise any remaining questions about the arguments or current state of the case. If I have not, then I will seek a brief synopsis of what the issues are and where each party stands (and thinks the other stands) in relation to settlement. Last, since much of the power of the mediation process is borne of the trust the parties must have in the mediator’s discretion and understanding of their position, I will also use this call to try to establish the beginnings of a rapport with them, to make some small talk to create a little bond or to find some point of common interest with the party. This is particularly true with individual claimants as they are generally the least familiar with or convinced about the process and building that rapport helps turn me from an external stranger into someone to whom they can open up and feel secure that their trust will not be betrayed.
Next, the formal mediation agreement itself, what it says and why you have to sign it.