The mediator is professionally trained and independent. His or her sole interest is in helping the parties to find a solution. However, they do not give legal advice or make any decisions or judgments in your case. Your private discussions with the mediator from the moment that you were first contacted will be treated as completely confidential and will not be disclosed to the other side without your express approval. Furthermore, all discussions with the mediator or the other party will be ‘without prejudice’, which means that nothing said can be referred to in any court action. The mediator will not impose a solution in the event of disagreement between the parties, the mediation will simply not settle. For a mediation to have the best chance of success, it is important that the parties understand and prepare for the process. Mediation is a forward-looking process so while there will be a chance to air your grievances at the beginning, directly to the other party, the emphasis will be on finding a solution acceptable to both sides. As the mediation will be for a limited number of hours, you should think about the following in particular before you start, since they are likely to be points that your mediator will want to discuss with you:
- To resolve the claim sooner rather than later what is your “bottom line” for an acceptable solution?
- What are you prepared to live with in order to resolve the case without going to the end of a court process?
- What ideas can you put forward that might help resolve the dispute?
- What are the other side looking for? What ideas might the other side put forward?
- Is there any other service that you could perform/receive as part of a settlement package?
- If the case does not settle, what steps will you then have to take in court proceedings; how long are they likely to take?
- What further costs are involved? (depending on the outcome in court you may become liable for the other side’s legal costs)
- How confident are you that you will win?
- What would be the likely outcome/the worst possible outcome?
- What are the weaknesses in your case / the other side’s case?
- Is there anything that you want to tell or ask the other side, to clear up any misunderstanding?
As the mediation process is confidential, you can be as frank as you like in what you say in private to the mediator. Be open and honest and be prepared to listen to and think about points made by the other party. Remember that when the mediator brings you information from the other party, he is only acting as a messenger and is not expressing his/her own views.