Setting the Ground Rules in Mediation.

Posted on 07/05/2016 · Posted in Mediation

Whichever kind of mediation approach a mediator takes and whatever their background, the mediator’s first task is to explain to the parties involved how the mediation process will work and, crucially, set the ground rules for the session. Ground rules ensure that all parties are on the same page from the start of the mediation, help establish positive and productive channels of communication, and safeguard all parties in the mediation process.

Typically mediation transpires along the following lines:

  • The parties will meet with an impartial third party (the mediator) in order to try to settle a dispute through negotiation with the mediator’s help;
  • The mediator will establish a positive atmosphere by setting ground rules for the parties to adhere to;
  • Each of the parties will explain to the other party and the mediator their account of the facts, and their view as to what would be the most auspicious outcome;
  • Each of the parties will then listen to the other side with an aim of understanding where they are coming from;
  • The mediator will help the parties to explore their underlying interests and choices, sometimes together, sometimes separately in caucuses;
  • The parties, enlightened by a deeper understanding of their needs and the options before them will negotiate with each other in a meeting with the mediator;
  • Where possible, the parties will reach and sign an agreement andand subsequently settle their dispute.

Almost every type of dispute management approach relies on a set of ground rules to ensure that the process runs fairly and that disputing parties are treated equally. With all participants agreeing to a set of principles up front, this allows the mediator to refer back to the agreed rules if a dispute gets heated or the mediator feels the ground rules are not being adhered to for any reason. It can also help make the mediation more time efficient by saving lengthy procedural debate throughout the session.

It’s not wise to violate rules until you know how to observe them”
T. S. Eliot

What the actual ground rules consist of will vary depending on the type of mediation, but may include agreement on behaviour, procedure, communication and even the role of the mediator. Behavioural ground rules might involve agreement on listening respectfully, not interrupting when another party is speaking, not using derogatory language, being on time for meetings and so on. All of this helps to build trust and aims to encourage parties to feel comfortable and secure in expressing their opinions and having a voice. Ground rules applying to process or procedure may involve agreement on confidentiality, how parties will deal with potential media interest, and whether or not observers of the mediation are allowed. Rules involving the mediator help establish expectations around what role the mediator will play in the session, how they lead the discussion, where they intervene or how they run the agenda.

Whichever of these ground rules the mediation participants agree to or deem suitable for their particular circumstances, this part of the process is a crucial first step in building trust and setting expectations up front which all contributes to a successful mediation outcome.

Here is a list of ground rules that mediator’s may find useful to follow:

  1. All information shall be disclosed to all parties, including the mediator;
  2. Technical jargon in legal documents shall be simplified to the fullest extent possible to ensure understanding from all parties;
  3. Participants will refrain from personal attacks;
  4. Participants will treat all parties involved with respect, allowing them an opportunity to present their ideas and solutions without being interrupted;
  5. Parties will be actively involved in developing objective criteria to arrive at a solution;
  6. Parties involved will not dwell on things that did not work in the past, but instead will focus on the future they would like to create;
  7. All proposed solutions and alternatives should be considered thoroughly by all parties with sincerity;
  8. Parties can request a caucus at any appropriate time;
  9. While in mediation, participants will refrain from adversarial legal proceedings. If there is a problem that needs to be resolved, they should agree to work it out themselves or with the help of the mediator; and
  10. If participants feel that the mediator is not being impartial or neutral, they must say so.

Whichever of these ground rules the mediation participants agree to or deem suitable for their particular circumstances, this part of the process is a crucial first step in building trust and setting expectations up front which all contributes to a successful mediation outcome.

In a successful mediation, the process reaches its conclusion when the parties simultaneously understand their own interests and begin to re-establish communication to be able to find a place where these interests coincide enough to determine a positive future in which they can both live.

That future may be the end to the historical relationship between the parties, or it may be the re-inauguration of dealing between them. Whatever the outcome, mediation aims to allow all participants to put the acrimony of the past behind them.

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Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.