What happens in a mediation hearing?

Mediation is a measure which individuals and businesses regularly use to resolve their disputes and avoid unnecessary slow and costly litigation.

It is popular, and chartered surveyors and other professionals are increasingly being asked by their clients to advise on the process.

Imagine that your client is in dispute with another party, and the matter is going to mediation. A mediator has been appointed, and you have been asked to represent your client at a mediation hearing. What do you do?

You should begin by preparing for a mediation hearing and not a trial or arbitration hearing. Mediation is not an adversarial process where both sides go head-to-head and try and persuade a neutral person to decide the dispute in their favour. A mediation is effectively a facilitated negotiation. The mediator’s task is to get the parties to negotiate and then keep them negotiating until an agreement is achieved. So, it is the disputing parties who decide the outcome, not the mediator.

When you prepare for the mediation hearing, you should focus on preparing for your mediation hearing. Think about what documents the mediator will need from you ahead of the hearing. You should provide documents to inform the mediator. Be succinct, Provide relevant documents, but not all documents.

Think about agreeing with the other party’s representative to give position statements and perhaps limiting the number of pages. Piling lots of paperwork on the mediator is not helpful for the mediator, and it is unlikely to help you or other party either.  

The mediator’s role ahead of the hearing is to try and understand what each party perceives as the best outcome.  At the hearing, the mediator will draw on the parties’ positions statements and will likely begin by giving a concise, straightforward and logical explanation of the issues in dispute, and remedies both parties seek.

Agree a mediation agreement. This is a document which sets out the parties' agreement to participate in mediation and their agreement to follow the rules of the mediation, such as confidentiality and without prejudice. The mediation agreement is a key document and should be signed by both parties before the mediation begins.

When a date is set for the hearing, exchange position papers with the other party. This will allow both parties to see what each other has told the mediator about the dispute and what they want to achieve in terms of an outcome. It also informs both parties about each other’s expectations. In many cases disputes have settled at this stage. Often parties have their own perception of what the dispute is about and what the other side’s position is on the matter. Position statements can add clarity, that has previously been missing. In some case, once parties fully understand each other’s positions, they can more easily engage in meaningful dialogue and reach a settlement.

When you liaise with the other party’s representative, you should agree a list of people who will attend the hearing. Let your client know and then get them ready and prepared for the hearing.

Do your research. Make sure you are up to speed on the issues and that you understand your client’s top and bottom lines.  Undertake a risk analysis and advise your client of the potential outcomes.

On the day of the hearing, make sure your client is prepared. Encourage them to be ready to moderate their position on some or all issues and to resist entrenchment.

The hearing will likely begin with a joint meeting between the parties and the mediator. You and the other party’s representative will be invited to make an opening statement. The mediator’s objective will be to give each side an opportunity to set out their case and understand the other party’s case. The mediator will also use the joint meeting to explore some, or all, of the issues further and ensure both sides genuinely understand their relative positions. 

The mediator may, in the early stages of the hearing, set some ground rules. These can be varied depending on the circumstances. They may simply be a requirement that the parties allow each other to speak and to not use inappropriate language. In any case, you should ensure you, and your client, adhere to the ground rules. Not because the mediator will sanction you, but because a failure to do so could prevent meaningful dialogue and delay a mutually agreed solution.

The mediator may ask each party to analyse all issues and rank them in respect of their importance to the party. This enables the mediator, and the parties, to get to grips with precisely what each side genuinely wants, and what is less important.

A particular element of a party’s case may be revealed as a priority, which was previously unknown to the other party. A party may reveal something that was not revealed or fully explained in their position statement, and it may be a matter on which compromise can be quickly achieved.

Mediation can achieve commercial or practical solutions that are not available from the court. Your role as a party representative will be to achieve a solution that is acceptable to your client. You do this by persuading the other party (via the mediator). To reiterate, mediation is not about persuading the mediator, it is about persuading the other party.  The mediator creates the environment and conditions for this to happen.

So, think about what the other party might need to see or hear. Think about what your client might need to see or hear. Continually reality check your client’s position and avoid getting embroiled in discussions about trivial or tangential issues. Be prepared to give ground on issues that are less of a priority for your client. Think about creative solutions and be open-minded about potential options.

At the end of the hearing, all being well, you should be ready to set out the terms of a settlement. This will not be dictated by the mediator, and you will need to be involved in shaping the terms. Naturally, you must ensure that any agreement is legal. It must also be workable and sustainable over time. Think about issues such as confidentiality and, if appropriate, build this into your settlement terms.

Finally, if you are unfortunate and the mediation has not achieved settlement of some or all the issues, don’t abandon hope. While the substantive dispute may be referred to litigation or arbitration, you should remain open to the possibility of matters returning to mediation. In a second attempt at mediation, you will be better informed, and you can draw on your earlier experience to make the process work for you and your client.  

If you are interested in furthering your mediation skills, explore RICS Mediation Training below:

RICS Mediation Training Programme

RICS Mediation Training Programme (MENA)

RICS Mediation Training Programme India

RICS Mediation Training Programme (South Africa)

Martin Burns

Head of ADR Research and Development, RICS

19 February 2024