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Finding A Solution Acceptable To Everyone

Rob Winstone on settling business conflicts: Part 3

MEDIATION is voluntary and involves using an independent and impartial third party, the mediator. Last month in CFJ, I explained the process leading up to mediation. Here I will discuss the practice.

On the day of the mediation all the parties will meet at the venue at the agreed time. The parties will be directed to their individual rooms, before bringing them together to meet in one room with the mediator, who will take you through the process of the day.

After going through the usual health & safety of the venue and house-keeping, the mediator introduces himself and the parties to each other and agrees on how everybody wishes to be addressed. The Agreement to mediate is then checked and the confidentiality agreement signed. The mediator advises the parties that the mediation process is a relaxed system, not bound by the rules of court.

It is voluntary and non-binding up to the point of agreement. It is a system that is conducted ‘without prejudice’, that means that anything discussed or shared between the parties cannot be used as evidence should the case go to court. Importantly, the process is confidential.

He will explain that the mediator’s role is to guide the discussion and clarify issues. It is not his role to judge, impose a view or a decision. He may ask some difficult and searching questions and even act as

devil’s advocate.

He will invite each party to make a short opening statement of the dispute as they see it, trying to confine this to no longer than 10 minutes.

He will usually start with the claimant, followed by the defendant. It is best that the parties do not interrupt each other and that the defendant does not try to answer specific points raised in the claimant’s opening statement.
It helps if you can prepare a statement to read before you attend the mediation and keep to the facts and issues that you consider important. After the opening statements, the mediator takes each party to the individual rooms.
He will often start his private discussions session with the claimant to identify the main issues before the private session with the defendants.

The mediator will move from party to party for private and often several sessions. These sessions are confidential and details of the discussions are not passed onto the other party. Only information that the parties agree to be shared is.

Sometimes a mediator will suggest that it may be helpful for some information to be given to the other party, but it will be your decision. When the mediator leaves you and visits the other party, he may ask you to think about something that has been raised.

As you could be in a room without the mediator for some period of time, even if you are not legally represented, I recommend that you have a friend, colleague or family member with you that you can discuss matters with or just chat. And remember that everything discussed is confidential; you are in control of what you want
the other side to know. The mediator will move from party to party, discussing points and issues raised by that
party and helping both parties to come up with a solution that is agreeable to them and the other party. He will
not judge or impose a decision.

The decision and agreement has to come from the parties and has to be one that they both agree and are
happy to sign into. When an agreement is reached it is formalised and put into writing in a form that is agreeable to both parties, it is signed and everybody gets a copy. This then becomes a legally

binding document.

Next month I will explain what happens if an agreement is not reached.

Rob Winstone is a flooring consultant, an expert witness for timber flooring and timber issues and an accredited civil and commercial mediator.


T: 07831 443088

This article has been reproduced from the Contract Flooring Journal website. You can find them at