How To Reach A Settlement In Mediation

As parties approach agreement in the mediation sessions, alternative methods are available to the parties and mediator. If it seems helpful, the mediator can convene an intermediate joint session where the parties can negotiate the final points, face to face. If necessary, one or more private sessions may be interposed.  Again, the mediator might convene a final joint session at which the parties and their representatives can settle the remaining details directly.


The mediator can continue with the private sessions until all the terms have been agreed and can then convene a final joint session to give effect to this.

Representatives and the parties should be aware of these alternatives and may wish to make representations to the mediator about the best way to conclude the negotiation. These alternatives include:


INTERMEDIATE JOINT SESSION

This session should only be recommended to parties and their representatives if some significant benefit from it is foreseen. Direct negotiations between the parties may lead to the re-emergence of confrontational attitudes and the loss of all that has been gained so far. One of the great advantages of private sessions is that confrontation is avoided. Also, constructive and cooperative attitudes may be developed under the mediator’s guidance.

It may be noted that in other types of mediation such as mediation of neighbourhood disputes, direct face to face negotiation is the norm and private sessions are the exception. But that is a special situation in which it is essential to build a relationship between parties who will continue to be neighbours. In commercial mediation the immediate task is to resolve the dispute in the best possible way.

Convening an intermediate joint session may sometimes be helpful, and lacking in risk, if a solid basis for settlement has already been agreed in the private sessions and only some harmless or technical points of details remain for the agreement, which parties can settle more effectively in direct discussion.


FINAL JOINT SESSION

When the mediation session has reached a stage where the parties are agreed on terms of settlement, the mediator will convene a final join session of all the parties and their representatives to give effect to the agreement.

The final joint session should not be convened prematurely, viz if there are any substantial points that still have to be agreed. This could lead to further dispute and to the loss of what has already been achieved.


FAILURE TO AGREE

Although over 90% of mediations succeed, a few mediations fail. Where parties fail to agree on a settlement, the mediator may suggest that parties could come to a short term agreement, provisionally, and resume the mediation at some future date.

Faced with an impasse, a mediator will attempt to find a common ground wherever he can, leaving the deadlock issues for a separate session.

Where despite a mediator’s efforts, a party decides to withdraw from the mediation process, the mediator should leave parties’ relationship in an optimum state, so far as the circumstances permit in the hope that they may later negotiate a settlement or perhaps return to mediation.

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