Q&A with mediator – what happens during a commercial mediation

Zoe Bowler in the Dispute Resolution team sat down with Rajinder Rai, a mediator and owner of Mediate With Me, to talk about what parties can expect during mediation and to get some helpful tips on how to get the most from the sessions.

Q – How would you define mediation?

A: Mediation is a cost-effective and speedier alternative method to resolve a dispute.

Q- What are the key differences between your role as a mediator and as a solicitor?

A – As a mediator, my role is to remain completely neutral and unbiased, focusing on understanding both parties’ perspectives without judging or favouring one side. In contrast, as a solicitor, my responsibility is to advocate for and advise my client.

Q- How do you encourage parties to mediate who are not onboard with the process at the outset?

A – I would highlight several key benefits of mediation, such as:

• Cost efficiency: – mediation is generally much cheaper than going to court
• Time-saving:- while court cases can take 18 months to two years to be heard, mediation can be arranged and resolved within weeks
• Relationship preservation:- mediation fosters collaboration and can reduce hostility, making it ideal for disputes where ongoing relationships, like business partnerships, can be maintained.

This approach ensures a quicker, less stressful, and more constructive resolution process.

Q – When parties arrive at the mediation venue, what can they expect the set up to be?

A – In a typical “in person” mediation, there are usually three rooms: one for each party and their legal representatives, and a third for me to review documents and gather my thoughts. Before the session begins, I visit each party’s room to have an introductory session which can be carried out jointly if the parties agree, or individually. I explain the process of mediation, outline the day’s agenda, and set expectations for the parties. If the mediation is virtual, I organise break out rooms for the parties but the process is otherwise very similar to in person mediation.

Q – The mediation process normally begins with the exchange of position statements from each party. What is their purpose from your perspective and what do you like to see in these statements?

A –The position statement plays a substantial role in mediation, acting as both a strategic document and a persuasive tool. On one hand, it provides me with a clear overview of the dispute, the key issues, and the strengths of each party’s case and on the other hand, engages both parties for the first time with the position statement shaping their perspective, potentially making them more amenable to negotiation and open to reaching a resolution.

Q – Can you tell me about the type of sessions which take place on the day?

A – Throughout the day, I will hold individual sessions with each party unless they are prepared to enter into a joint session, to better understand their positions, potential offers, and settlement goals. We will discuss the merits of their case, consider the evidence, and legal costs. Using this information, I will act as a go-between, shuttling between the parties to facilitate a discussion and help them work towards a resolution that satisfies them both. These sessions aim to clarify expectations and encourage meaningful negotiation, keeping the focus on finding common ground.

Q – How should parties approach making an offer?

A – I will ask parties at a suitable time during the mediation, whether they have any offers to make to the other party so I know the parameters I have to work with. Some parties choose not to disclose their offer until they have heard from the other party or certain information has been disclosed to them. It can be valuable for parties to come into the mediation with an offer and if they do make one, they must ensure it is one they can deliver on after the mediation appointment ends.

Q – What techniques do you use to encourage a settlement where parties reach a deadlock?

A – When sessions reach a stalemate, I shift focus to uncover deeper issues. Often, it’s not just about money. Underlying relationship conflicts or the need for an apology can play a significant role. Mediation allows for flexibility in resolving such disputes, offering alternatives that courts can’t. Additionally, I use reality testing questions to help parties reassess their positions.

Q – Have you had situations where parties have ended the mediation but come back at a later date?

A  – There have been instances where expert evidence or other critical information was withheld or not available at mediation. Mediation often requires full disclosure to allow all parties to fully understand the dispute. If necessary, the mediation session can temporarily be halted to allow the evidence to be made available so that the mediation session returns on a later date to be completed if needed. Alternatively, the parties may resolve the settlement through telephone or written negotiations following the initial mediation session, which can lead to a resolution or a narrowing of issues soon after.

Q – Do you think a virtual mediation can be as effective as an in person mediation?

A – It is crucial for parties to approach virtual mediation with the same seriousness as an in-person session to fully leverage its potential. Parties should be comfortable with the technology involved or have someone on hand to assist them. Prior to the mediation, I will conduct a pre-mediation session with each party to review the virtual format and ensure they understand the procedures. I will also check in shortly before the mediation begins to confirm that their audio and camera are functioning properly. When preparations and procedures are handled correctly, virtual mediation can be just as effective as traditional in-person sessions.

Q – What is the benefit of having a good legal team at your mediation?

A – A legal team can address key issues prior to the mediation session, such as setting expectations, understanding the risks of litigation, and evaluating the merits of the case. This preparation ensures that parties are fully informed and ready for the mediation appointment.

Q – What else do you think is important to maximise the chance of a successful settlement?

A – Transparency at mediation is crucial, and the confidentiality of the process is designed to help parties feel comfortable sharing openly.

Thank you to Rajinder for what was a very interesting and informative discussion.

If you would like some advice about mediation, or you have a mediation coming up and you would like to instruct a legal team to attend the mediation with you, our Dispute Resolution team has a wealth of experience with mediation and we would be happy to talk with you.

Read this article for options if mediation if not successful.