2. The Conduct of Mediation
CENTRE FOR EFFECTIVE DISPUTE RESOLUTION
Seminar on Investment Mediation for Government Officials:
The Conduct of Mediation
James South- Mediator and Director of Training,
Centre for Effective Dispute Resolution (CEDR)

3. The phases of mediation
Preparation
Exploration
Concluding
Bargaining
Opening

4. The phases of mediation
Preparation
Exploration
Concluding
Bargaining
Opening

5. Opening Introductions Ground rules Parties’ statements
Often first time to present case face to face
The mediator will introduce him / herself and ensure that his / her role is understood.
Ground rules will be set, re-enforcing the voluntary and confidential nature of the mediation and setting out the planned agenda for the day.
The parties opening statements are an important beginning for the mediation, enabling them to inform the other side of their case with full feeling. It is often the first chance that the parties will have had to put their case to the other party face to face, and similarly the first opportunity to hear the other party put their case.

6. Roles during opening Mediator Explains ground rules and process
Sets the tone
Encourages participation
Lawyer
Presents opening (to extent agreed with client)
Acknowledges valid points made by other parties
Listens actively
Client
Acknowledges authority
Confirms understanding of mediation agreement terms
Makes opening (to extent agreed with lawyer)
Vents, “clears the air”, gives explanations and
has “day in court”

7. The phases of mediation
Preparation
Exploration
Concluding
Bargaining
Opening

8. Information unknown to others Information known to others
Why Explore?
STATED POSITIONS
Claims
Demands
Solutions
Rights
Context
Needs
Concerns
Health
Emotions
Financial pressures
Fears/Hopes
Feelings
History
Need for speed
Reputational and other risks
Personal & Commercial drivers
Information unknown to others
INTERESTS
Information known to others

9. Roles during exploration
Mediator
Builds relationship, trust and rapport with parties and lawyers
Asks open questions to identify needs/interests
Generates ideas – “expands the pie”
Lawyer
Allows client to focus on commercial and personal interests
Discusses legal issues when appropriate
Client
Explain wider picture, interests, agendas, context
Differentiate between wants and needs
Trust the mediator – confidentiality

10. The phases of mediation
Preparation
Exploration
Concluding
Early Bargaining
Opening

11. The phases of mediation
Mediator
Coaches parties on framing of first offers and tests how it will be received
Identifies objective criteria
Manages expectations and reactions
Lawyer
Realistic assessment of strengths and weaknesses of the case
Assist client to formulate offers
Client
Adjusts expectations
Makes and reviews offers
Yields to reason – open to other side’s reasoned points

12. The phases of mediation
Preparation
Exploration
Concluding
Late Bargaining
Opening

13. Roles during late bargaining - Deadlock
Mediator
Reality testing- BATNA and WATNA
Risk analysis
Uses strategies to break impasse
Lawyer
Realistic assessment of strengths and weaknesses of the case
Reviews BATNA
Re-assesses costs
Client
Have reached the “point of despair”
Adjusts expectations based on reality testing
Makes and reviews offers

14. The phases of mediation
Preparation
Exploration
Concluding
Bargaining
Opening

15. Concluding phase of mediation
The settlement must be viable and workable
Satisfy all parties
Deals with all issues in dispute
Minimise likelihood of future disputes
The best settlement is the parties’ not the mediators’
Put settlement in writing