The principal risk of mediation is that the parties will expend time and money without reaching agreement.
The mediator's role is to encourage understanding of differing perspectives, concerns, interests and aspirations. Getting parties to agree to attend a mediation is just one step along the way to a successful resolution.
A mediator should therefore remain vigilant to a party's manoeuvring or posturing which may delay or derail the prospect of a valued resolution.
“Your place or mine?”
Jockeying for one or the other's home turf can introduce an unnecessary early setback to the parties' commitment to resolving their issues.
Arranging a "neutral" venue, such as a specialised dispute resolution venue or an airport business lounge (for interstate parties), can be a sensible solution.
Arranging the physical space
Having sorted the venue, taking time to arrange the physical space is just as important in promoting a productive discussion.
Assembling parties on opposite sides of a boardroom table all day could well entrench an "us v them" mentality.
Better options include mixing up or interspersing the different parties, and/or providing breakout spaces/rooms for parties to confer in private and discuss confidential matters.
"Your document or mine?"
Another speed bump that can derail the promising direction of a mediation is when one party presents a draft agreement.
This could permit one party to seize control of the negotiation, and from there drive the conceptual framework for its outcome (or, indeed, its failure).
A mediator may well suggest a number of options to enable the other side to re-establish a shared control of the negotiation.
One option is to propose that the receiving party at least suggest which, and the sequence of, issues they wish to discuss.
Alternatively, the receiving party can be encouraged to prepare their own counter-draft which reflects their own interests and positions. The parties can then be encouraged to work together to draft a single text that incorporates common principles that emerge from discussions of the two drafts.
Of course, the success of a common draft will be driven by the extent to which the parties have already reached agreement on the key principles and concepts that govern their relationship. If that has not occurred, rather than egging on duelling drafts, the mediator can encourage parties to discuss principles first, thereby promoting greater integrity to their framework for further negotiating the details of their agreement.
Bridging the Gap
Sometimes parties, who have negotiated all day, reach a last, apparently unpassable, impasse.
Whatever be the cause, the mediator has a number of options to select from to help the parties bridge the last gap, including reminding them of their best case/worse case scenario (often enough an expensive, prolonged litigation), reframing their BATNAs (best alternative to a negotiated agreement), splitting the difference between them, expanding the pie, adding an apology, or even tossing a coin.
Write it Down
Of course, many mediations proceed without any exchanges in writing, and through the ebb and flow of discussion and counter-offers, the parties are ultimately able to reach a satisfactory verbal agreement.
But when the parties go home, minds may well differ as to the supposedly agreed terms. Ensuring the parties write down their agreement is essential.
© 2015 Phillip Street Chambers Pty Ltd