Course of mediation
How do you start a mediation?
Often one party initiates mediation by asking the other if there is a willingness to address a dispute, problem or conflict through mediation. When this willingness exists, a mediator can be chosen by mutual agreement.
On the other hand, it is also possible that the mediation was contractually agreed upon. In that case, the mediation will start according to the contractually agreed rules.
When mediation was ordered by a judge (called judicial mediation), the mediator will contact the parties involved and/or their attorneys to initiate mediation and schedule an initial meeting.
The steps
1. First introduction
During the first free conversation, the parties meet the mediator. The mediator explains what mediation entails and how a mediation process works. During this conversation, the mediator clearly explains his/her task, the expectations he/she has of the parties and his/her working methods. If the parties have any questions, this is the time to ask the mediator. In addition, the mediator will listen to the parties' concerns and expectations in order to mutually agree on a mediation path.
This process has no predetermined length of time as it depends heavily on how the parties enter the process. At the end of the introductory meeting or in a subsequent meeting, the parties and the mediator will sign the mediation protocol.
This document is subject to some legal requirements and includes:
- The name and details of parties
- The description of the issue at hand
- Explanation of the principles of mediation
- Clear agreements about the course of mediation
After that, the actual mediation talks can begin.
2. The mediation interviews
During the talks, each side will have the opportunity to tell its story and explain its vision or point of view.
The mediator facilitates communication and ensures that the positions of all parties are clear to each other. This can already create an understanding of the other party's point of view.
By actively listening and asking appropriate questions, the mediator will try to find out the needs and interests of each party.
In this way, one often arrives at interests that are reconcilable or even common interests.
From these interests, solutions will be sought together in the next phase.
In certain circumstances where the situation is too tense to have a conversation together, the mediator may start with an individual conversation or schedule individual conversations during the course of the process.
It is also possible to involve external experts or parties in the mediation. In business disputes, for example, an accountant may be called upon for his substantive expertise. In the case of construction disputes, on the other hand, an architect or certified surveyor may be invited for additional study work at the request of the parties.
In certain cases, parties may be instructed by the mediator to gather additional information by a subsequent session. This may include, for example, a divorce where the parties will review an estimate of the family home, the financing options of either partner, the valuation of a group insurance policy, and the like more.
3. Finding solutions
When all interests and concerns are clear and parties are adequately informed, they start looking for appropriate solutions together.
At this stage, the mediator will appeal to the creativity of the parties to come up with as many appropriate solutions as possible so that ultimately an agreement can be found that all parties can agree on.
4. Agreement
The mediator will put in writing the agreement reached.
When all parties agree to this document, they sign the agreement.
If the parties wish, the agreement can be homologated by the court, giving it the same value as a judgment rendered by a judge.
The mediation agreement is a legally binding agreement and serves as law to the parties.
5. Further follow-up
If the parties so desire, the mediator may follow up with the parties after the mediation process, including with respect to the implementation of the agreement reached or its evaluation.
Of course, it is also always possible for the parties to re-engage the mediator after the end of the process if, for example, the mediation agreement is no longer appropriate or has been superseded by the facts.