by: Peter Braund
The mediation process is private, confidential and without prejudice. Anything said, admissions made or documents referred to or discussed are inadmissible in any further litigation or arbitration proceedings to the extent allowed by law.
All persons present should exercise civility and courteousness in their remarks and demeanour, and show respect for one another. Only one person speaks at a time. No interruptions. No inappropriate language. No name calling. If you hear something you don’t like, make a note of it; you will be given an opportunity to respond later.
Your role is to convince the other side of the rightness of your position and the frailties of their position. Do not try and convince the mediator as the parties in the end determine the settlement, not the mediator.
The mediator’s role is to try and bring about a resolution of the outstanding issues involving liability and/or damages.
Caucusing is part of the mediation process when the mediator will meet with one party or a group of parties and their counsel separate and apart from other parties.
The mediator is free to disclose to any party or to his/her counsel any information provided by the other party during caucusing which the mediator believes to be relevant to the issues being mediated, unless a party or his/her counsel has specifically requested that the mediator keep certain information confidential, in which event that request for non-disclosure will be honoured.
- CLIENTS COME FIRST
Clients are paying their lawyer’s bills and the mediator’s account. They come first. Clients are encouraged to participate, ask questions and make comments at any stage – subject to the rules of civility discussed above.
Every party comes to a mediation with hopes and expectations of achieving a certain result. The reality is that these expectations may not be met. In order to reach a settlement, all parties must be prepared to compromise. It is sometimes said that a good settlement is one which neither party is particularly happy with.
- CONCLUDING SETTLEMENT
If settlement is reached in principle, counsel may draft a settlement agreement and/or a full and final release for signing to give effect to the settlement.