Mediation does not have the formality of a court and you and the mediator will agree the format of the day with you on your arrival and as the day progresses. Each mediator will have their own style.
Normally the venue will have one room for each party plus a large meeting room where everyone can meet.
The usual procedure is for the mediator to meet with you before the mediation starts and to sign the mediation agreement. There will then be an opening session attended by everyone at which the mediator will affect the introductions and make a few comments about the procedure and “ground rules” for the day. Afterwards each party sets out their view. Sometimes the discussions continue but it is more common for the parties then to return to their individual room.
The mediator will then shuttle between the rooms listening in the private and confidential sessions to the parties explain and develop their cases before looking at ways to settle the case and reach a settlement agreement.
The mediator uses the confidential information which he is given authority to disclose to develop the issues and allow both parties to analyse the strengths and weaknesses of their case which will lead to looking at best and worst case scenarios and a cost/risk benefit analysis.
The mediator is not a judge so you do not need to try to convince the mediator that you are right. However, be prepared for him to undertake a “reality test” of your case with you
where he may ask you some hard hitting questions to make you realise that perhaps your case is not as strong as you thought. He will be just as tough on the other party!
A common misunderstanding of the mediation process is that it is a soft option and a fudge. It is not. To achieve a settlement both parties will have to concede ground. There is no power to make them give ground. It depends on the negotiating stance taken by both parties, their will to settle or take on the risks of litigation and go to trial and the ability of the mediator to find a mutually acceptable solution.
When settlement is achieved, the lawyers will normally draft an agreement which is signed by both parties and becomes binding. If court proceedings have been issued an order will be lodged at Court to record the terms of the settlement.
In the unlikely event that settlement is not achieved then the litigation will continue. Neither party will be able to rely on the admissions that were made nor offers as the process is without prejudice. Both parties will have a better understanding of the strengths and weaknesses of their case and the other parties and we find if nothing else it narrows the issues which will go forward to trial and often the negotiations continue between the solicitors which in itself results in settlement.