Before Mediation

The following are suggestions that may be useful but may not apply to all Mediation situations. For clarity, when we refer to the ‘Mediation Process’ we are including all activity flowing from the initial consideration of and contact with a Mediator through to the arrival at and putting into operation of an agreement. When we refer to the ‘Mediation’ (as in ‘Before Mediation’) we mean the Mediation sessions or meetings.

For many disputes the most important advice can be to engage a Mediator, embrace their guidance and turn up to the Mediation session with an open mind. Below we augment that basic advice with some more detailed observations on what happens or could happen prior to the Mediation sessions taking place.

Considering Mediation

The MII promotes mediation as a means to deal with any kind of dispute. It is an incredibly successful mechanism for resolving differences. If you are considering Mediation you already have good reasons for concluding that the dispute is a problem and that it can be best resolved by the parties involved. Glance at the ‘Benefits of Mediation’ section of this website – most importantly remember;

• Mediation is private and confidential – no-one involved can publicise the fact of or details of the Mediation.
• You’ve got nothing to lose – if Mediation doesn’t work you still have all other options open to you.
• Mediation is generally substantially quicker and cheaper than litigation.
• By agreeing an outcome you can find a solution that will work in practice.
• Negotiating and agreeing a resolution improves greatly the chances that you and other parties will abide by and comply with the outcome.
• Mediation can be an empowering and positive life experience.

Choosing a Mediator

MII Mediators are the best trained and most effective Mediators in Ireland. When choosing a mediator you can use the ‘Find a Mediator’ function on this website which provides information on mediators in your area and with the expertise to match your needs.

You may also wish to consider the following questions:

• What are the proposed Mediator’s personal attributes? (patience, empathy, intelligence, flexibility)
• Are they a professionally qualified and regulated Mediator? (such as MII Mediators)
• How experienced are they in Mediation generally?
• How experienced are they in the particular area of relevence to you?
• What is the Mediator’s professional background?
• Is their Mediation training accredited and certified? (All MII Mediators are so certified)
• Does the proposed Mediator have any conflicts of interest?
• What are the proposed fees and how are they to be paid?

The Agreement to Mediate

Not to be confused with the ‘Mediation Agreement’ which comes at the end of the process! This agreement comes at the beginning and is an important first step towards a negotiated settlement. It is significant that the parties, before they have raised their issues or met in a Mediation Session have indicated and agreed to Mediate – this forms a strong positive starting point and is their first step towards a collaborative resolution.

The Agreement to Mediate will usually include the agreed process, the agreed format for communications, a confidentiality clause and the agreed payment terms. The Mediator will draw up the Agreement to Mediate after consulting all parties. Like all aspects of Mediation the Agreement to Mediate is wide open for the parties input – if there is an important condition or clause the parties wish to be inserted then the Mediator will include it in the document.

Preparation for the Mediation

The following points are not exhaustive nor applicable to all Mediation situations:

1. In the MII we believe that where possible the structure and form of the Mediation Process should flow from the parties needs and ideas. To achieve this the Mediator, once engaged, can meet with each of the participants seperately in order to deal with preliminary matters, get a grasp of each participant’s starting point and get their input into the structure, timetable and location of Mediation sessions. The Mediator can also use this opportunity to guide the parties as to the most useful way to communicate during Mediation sessions and ensure as far as possible that the parties are ready to discuss their dispute in a reasonably objective fashion.
2. You may have agreed in the ‘Agreement to Mediate’ to prepare and provide certain documents like a Statement or Summary of your position. In court directed Mediation you may be obliged to exchange documents and provide disclosure of evidence. In any event setting your position down in a summary will always help. It is also usually sensible to gather any supporting material, this may include; pictures, medical reports, bank statements, company records and any other documents which support or are relevant to your position.
3. Consider the issues in a realistic fashion – identify the constraints, legal, financial and practical which will operate on finding a solution. One of the biggest obstacles to finding swift effective resolutions is parties retaining unrealistic notions of what is possible. Look at your expectations – are they sensible and realistic? Could they be put into practice if others agreed to them?
   Consider what you know of the other participant’s positions. Consider their likely reposnses to your proposals. What can you say to them that may assist them in compromising? What concessions or compromises can you offer which may be important to them?
4. Take a ‘time out’ from the dispute and any conflict, resentments or hurt it has caused. Focus purely on the future and put issues from the past to one side. How can you make this situation work? What is needed to resolve your differences? Remember that no matter how negative feelings have become on either of both sides it is in your own interest and often in the interest of others not involved in the Mediation for an amicable and effective resolution to be found. Put all your energy into finding a positive outcome.

The Mediation

The Mediation is the process agreed upon and adopted by the participants to raise the issues in dispute and seek a resolution of differences leading to an agreement. The basic format for the Mediation will usually be outlined in the ‘Agreement to Mediate’.

The Mediation typically takes the form of meetings or sessions between the Mediator and the parties either seperately or together. However this is not obligatory and the mediation can be realised through other means of communication if appropriate and agreed by the parties (see ODR below).

Mediation Sessions

Once it is established that the parties agree that Mediation can help and have signed an ‘Agreement to Mediate’ the most likely next step is for the Mediator to facilitate one or more meetings in a neutral and private location where the parties can seek to resolve the dispute. The purpose of the meeting is to foster good communication between the parties, encourage conciliation and cooperation so that they can move from dispute to negotiation and finally agreement.

Mediations do not have fixed, formal or compulsary elements. MII Mediators are trained to deploy a wide range of options and skills in ensuring that the Mediation can be as effective as possible. Mediation sessions will usually include some or all of the following;

• the establishment that all participants understand the ‘ground rules’ concerning confidentiality and behaviour.
• the ensuring that all parties understand the role of the Mediator.
• the parties each articulate their side of the story and indicate what they feel is important.
• issues are identified which require attention and discussion.
• the interests and objectives of each party can be clarified in light of the issues identified.
• objective criteria for approaching the areas of difference can be discussed and agreed.
• the identification and timetabling of any further asistance or information which would assist.
• identify the existing options to resolve the differences.
• arriving at broad proposals for resolution
• discuss proposals and analyse in detail whether they could be effective.
• adjust and refine proposed solutions until both parties find them acceptable in full.
• formulate the solutions into an agreement or memorandum.

Online dispute resolution (ODR)

Its not unusual for disputes to cross borders or for disputants to be located considerable distances from each other – a seperating couple may live in different countries or a dispute could arise between businesses who trade internationally. Even in a more localised situation there may be health issues or other sensitivities which preclude attendance at a meeting. Mediation has embraced modern communications to meet these challenges.

Mediation can now be carried out fully online using Skype and other communications and meeting platforms (including specially designed Mediation platforms) or it can be managed by a combination of meetings, conference calls and online technology to overcome distance and other obstacles. Your Mediator should incorporate ODR as a solution should any issues with meeting attendance arise.