Guide to Mediation

Guide to Mediation


What is mediation?

Mediation is a voluntary, informal, and confidential process, which takes place with the consent of all participants involved. In mediation, a trained neutral person, assists the participants to work toward a resolution of a dispute with the participants themselves remaining in control of the outcome.
What is the role of the mediator?

The mediator is impartial and independent and does not have any personal interest in the outcome of the dispute. Their role is to create a confidential and safe environment which encourages participants to engage in a creative, problem-solving process. The mediator is not a judge or arbitrator and does not decide who is right or who is wrong. They will not advise, suggest, recommend or impose anything. They use their skills to allow the participants to be heard in a respectful, non-judgmental way, and assists them in developing and finalising their own solution to the dispute.

Are parties required to be represented by a lawyer in mediation?

A lawyer is not required to participate in mediation. The participants may represent their interests in mediation themselves. That said, if a participant wishes to engage a lawyer to assist them in the mediation, they are encouraged to do so. This may be important to a participant when it comes to the drafting of the terms of the settlement agreement as the mediator cannot do this for the participants.

Lawyers that represent participants in mediation have a different set of skills to those representing clients at court or tribunal. These skills are learned and practiced. Below is a summary of skills that lawyers will need to assist clients at mediation.

What are the skills that lawyers should have when representing their parties in mediation?

1. Trust
One of the main assets is trustworthiness. Lawyers that have built a reputation of trustworthiness will have the confidence of both their client and the other participant, making it easier to achieve a settlement more quickly and efficiently. For example, trustworthiness can be demonstrated when a lawyer truthfully states in mediation that the offer that is being proposed in mediation is the final offer of their client.

2. Listening
They should be good listeners, paying attention to everything that is said, and removing the emotion in the communication. Active listening enables the parties to feel heard and to reciprocate, creating trust and credibility. In reality active listening is not an easy task. It allows participants to understand one another and to identify their respective interests. Much of how we communicate is non-verbal. A good mediation advocate will be aware of their body-language, the facial expressions, the tone, and silence, and that of their client and opponent.

3. Preparation
It is fundamental for lawyers participating in mediation to prepare a strategy for negotiations. They need to consider and anticipate the different possibilities that may emerge as the negotiation gets underway. Accordingly, lawyers must be flexibility in order to respond to requests and questions from their clients and the other participants. They need to be prepared to respond to multiple options, both as to the process and substance, that might be presented. It is important to develop a BATNA (best alternative to a negotiated settlement), but also to understand that fresh information at mediation might affect the BATNA.

There are a number of ways a lawyer can prepare for mediation which may include:

i. having a pre-mediation call with the mediator;
ii. preparing a draft settlement agreement;
iii. preparing a mediation position statement for both their opponent and the mediator;
iv. considering the impact of opening statements and initial offers;
v. considering any non-monetary outcomes, such as an apology;
vi. preparing their client for mediation by informing them about the process, who will speak, what they will say, and how what they say will help;
vii. considering a joint session to break the ice, establish the way forward, and expedite the process;
viii. achieving some progress from each session; There will be moments when settlement does not seem feasible, but progress often happens right after the worst moments;
ix. remaining optimistic;
x. identifying innovative options;
xi. informing their clients of other available options and next steps.

4. Empathy
Lawyers are practiced in stating their arguments, while undermining the arguments of their opponent. This approach is unhelpful in mediations where the goal is to reach a mutually satisfactory outcome. Showing empathy in a mediation means understanding the interests of the other participant and being open to considering outcomes that meet those interests, as well as your clients.

5. Creativity
Lawyers need to be innovative on possibilities that they could develop with their clients and in due course the other participants. Litigation does not permit the same level of creativity as mediation. In litigated cases, the dispute is narrowed down to a number of issues for a judge to decide and the outcome will benefit only one participant. Mediation offers multiple options, and multiple factors are identified that may be important for both participants. Participants usually have complementary interests, and this opens the door for the lawyers participating in the mediation to “expand the pie” so that there is more to go around.

6. Flexibility
Lawyers create a strategy for their negotiation and will reassess this depending on the disclosures and progress of the mediation.

7. Self-awareness
Effective lawyers reflect on the approaches they use and how they communicate with both their clients, their opponent and the mediator. They should seek feedback and be mindful of the impact of their dialogue and negotiation strategy.

8. Confidence
Lawyers are usually confident about their clients’ case but at the same time need to be able to admit the weaknesses of the case. They should understand their client’s case and interests thoroughly and be able to clearly communicate both its strengths and weaknesses to their clients and to the mediator.

9. Patience
Mediation usually takes more time and energy than expected; it can be physically taxing, and there may be moments where the participants become frustrated or angry. Lawyers should be patient and resilient, but at the same time, they should also know when to take a break from the negotiations.

We hope that this guide was useful in appreciating that mediation, and mediation advocacy, is an art and a skill. Effective mediation advocates will be able to help to identify the common ground between the participants, work to satisfy their respective interests and encourage them to create a lasting outcome. To do so requires a different skill set to those required for court or tribunal.

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