PREPARING FOR MEDIATION
A copy of the Mediation Agreement will be forwarded in advance to each party who has agreed to retain the services of the mediator. Any issues with the Mediation Agreement should be brought to the attention of the mediator prior to the mediation. An original copy of the Mediation Agreement will be signed by the participants prior to the commencement of the mediation session.
Mediation is conducted on a confidential and without prejudice basis, including any and all pre and post mediation communications, documentation and discussions. Recording of the mediation proceeding, or any part thereof, is strictly forbidden.
Unless otherwise agreed, full day mediations are six hours in duration from 10:00 AM to 4:00 PM. Half day mediations are three hours in duration and commence at either 10:00AM or 2:00 PM.
For in person mediations, two or more boardrooms are usually required, one room being large enough to accommodate all the parties and participants, and the other room(s) serving as a break out room(s). Each party is entitled to privacy for confidential discussions with his/her counsel during the negotation stage of the mediation. Often the parties prefer to use neutral facilities to conduct a mediation, however, by mutual agreement mediation could be held at the offices of one party's counsel.
Virtual mediations may also be conducted by video conference in lieu of in person attendances, at the request and on consent of all parties.
Mediation briefs are usually exchanged by the parties, and provided to the mediator, prior to the commencement of the mediation. All participants should review the briefs in order to gain an appreciation of the overall dispute and the positions and interests of the respective parties involved in the mediation.
Subject to the parties' mutual agreement otherwise, mediations typically commence with a joint session where all participants convene for the purpose of a joint discussion about the matter in dispute. The mediator will likely commence the process by making some opening remarks designed to inform the participants about the mediation process. Each party will also have an opportunity discuss their respective perspective on the matter and thereby provide context for the negotiations to follow. In some cases, opening remarks by the parties may be waived either on consent or by the mediator should he/she deem same potentialy detrimental to the process.
Following opening remarks, the negotiation phase of the mediation will commence and thereafter the parties will spend the duration of the mediation in a separate private room with their respective counsel, engaged in the decision-making process.
The disputants or litigants are the most important participants in the mediation process, as they alone have authority to decide the outcome.
A successful mediation requires a willingness by all parties to strike a compromise. With that in mind, the probability of achieving an enduring settlement is significantly enhanced.