Typically the format of a mediation hearing involves the following stages:
- The parties meet in a plenary session with the mediator to set the stage for the mediation. This provides the forum where the parties can state their positions.
- The mediator caucuses with each party. These sessions are confidential save to the extent the mediator is authorized to take information to the other party.
- After one of more of these sessions, a point will come where the parties will either reach a settlement or find they are unable to do so.
- If a settlement is reached it is documented; if not, some mediators, including myself, have expressed a willingness to remain involved to facilitate ongoing discussions between the parties which may lead to a settlement.
Even an unsuccessful mediation can bear fruit. It can clarify and narrow the issues which can bring about a settlement at a later stage. That said, the optimum is to encourage a settlement if one is to be had on the day set aside for the mediation. The parties are most invested in trying to reach a settlement then. They have set aside the time and each has usually approached the Mediation with an optimism that a settlement is possible, albeit on terms they see most advantageous to themselves.
With that in mind, mediators look to try to bridge any gap that exists. An activist mediator will try to achieve this through a mix of encouraging the parties to try harder, utilizing one’s realistic or practical advice, commercial perspective and the use of other skills. Some may suggest a med-arb approach whereby the mediator makes a written determination of the outcome and places it in sealed envelope only to be opened at the end of the mediation if there is no settlement. That is a risky business but if the parties buy into it they will be encouraged to moderate their positions so they achieve a collaborative solution rather than one that will have been imposed.