Time in any mediation is often both limited and precious.  Once it is underway there is little time for sorting out the preliminaries.   In this article, I will summarise briefly the key steps which I recommend before the mediation process starts.

First contact

Crucially, I will speak to each party in the days or weeks leading up to mediation in order to prepare them for the mediation itself.

I then typically follow up to deal with any outstanding administrative matters, especially to check that the mediation agreement (see below) has been signed. In addition, I want to be sure that the 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.  Do they understand the ground rules about confidentiality, process, my neutrality and the outcome being in their hands, not mine?  I will also use this prior contact to raise any questions I have about the arguments or current state of the case and to seek a brief synopsis of what the issues are and where each party stands (and thinks the other stands) in relation to settlement.  

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 try when we speak to establish the beginnings of a rapport with them, to find some point of common interest with the party. This is particularly true with individuals as they are generally the least familiar with 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.

The Mediation Agreement

Though it does not happen in the ET, commercial mediators will want the parties to sign into some form of agreement. There are a multitude of these variations available online but in workplace and employment cases they all cover broadly the same ground. So what can you expect to be asked to sign up to?

1. First, a commitment that the mediation process represents a good faith attempt by each party to settle.  Though this is just words and in that sense no more legally enforceable than an oral statement to the same effect, it is a representation which the mediator can more easily refer a party back to by virtue of its being in writing.  It may also be of some reassurance to a party otherwise sceptical of the
other’s intentions.  

2. A promise that the attendees for each party have full authority to bind it by the terms of any settlement.

3. An express reiteration of the confidential and without prejudice “bubbles” around the process.  

4. Some agreements provide that no settlement reached at the mediation will be legally binding until set out in writing and signed by the parties.  This is not always adhered to, especially where the mediation moves into facilitation territory and a mutual clarification or clearing of the air may make the necessary difference without anything more formal than a handshake. However, if the mediation is to resolve a dispute where the employee has brought legal proceedings or is still in time to do so, then a settlement in the form of a statutory compromise or Acas COT3 agreement is most usual.  

Position papers

Sometimes the parties to a mediation are asked to provide the mediator in advance with a “position paper”, most commonly where lawyers are already involved. This is a document of a few pages (as a rough rule of thumb, the equivalent of five minutes’ talking).  It sets out in broad terms how the parties have got to where they are, how they feel about that and where they want to get to.

From my perspective as mediator, a position paper can help make prior sense of a dispute where either there is very little documentation (for example a falling-out between colleagues), or it is voluminous or badly-organised.  It can certainly be helpful during my preparatory work to have my attention drawn to particular key documents.  A position paper can also help me assess in advance the intended approach of each party to the mediation.  While the tone which each adopts is ultimately a matter for them, ignorance or anxiety can sometimes lead position papers to come across as particularly unrealistic, insulting or uncompromising.   I cannot require them to change their paper, but in those circumstances I would tend to have an “Are you sure?” conversation with the party, just on the basis that its continuing that approach in the mediation itself might increase the risk that the other would walk away.

The preparation of a position paper can also help the parties themselves.  The process of reducing their thoughts and aspirations to paper can help bring order and a strengthened degree of realism to their thinking.  

All that said, I would never insist on such a paper if I thought that the mere process of writing it would be off-putting to a party.  They might have limited writing skills or fear (quite unjustifiably) that their paper will somehow be “trumped” in my eyes by a more polished product from a professional representative.  They may just feel happier to talking to me than writing, and that could make any requirement for such a paper an obstacle in their mind to the mediation itself.  Under those circumstances, although they are routinely ordered in judicial mediations regardless, I would not ask either to produce one.