Once it has been decided that the parties are open to mediation and you have been appointed as the mediator, the first part of the process is to engage in pre-mediation discussions with the individual parties.
If it is easy to do so, then it would be preferable to have these discussions face-to-face. However, if this is not feasible (in my practice it rarely is) then there is no problem in having these discussions over the phone or perhaps by an online voice application (such as Skype).
However you do this, it is obviously important to ensure that you arrange to make contact in a confidential and sensitive manner, and arrange the call so that the party can be assured of privacy.
Ahead of the discussions, it may be useful if the parties have been sent some information or guidance regarding mediation. I have put together a short Guide to Mediation, which I will generally ask those appointing me to pass on to the parties. This also gives them an opportunity to check me out if they wish to do so. Alternatively, I may send the guide following our initial conversation so that they have this for reference purposes. The main thing to bear in mind is that the parties will be anxious and nervous, and therefore may not take in all the information in one go.
The purpose of the pre-mediation discussion is threefold:
- Explain the process: This is to answer any queries that the person may have about the process, how it works, what it will be like, what they need to do, and so on. This often includes giving some assurance of the process and trying to allay their fears. Be careful not to over-sell here and seek to persuade a very reluctant party. You need to be honest; mediation is not an easy option and it will be difficult and emotional so the parties need to be prepared for that. You may also need to (or be asked to) talk about what the alternatives to mediation might be, for example, a grievance or legal claim. You cannot, of course, give any advice, but you can refer to how those processes work and how they differ from mediation.
- Start to establish a relationship: This is where you start to build some trust and rapport. This will come naturally to many people, but as we discussed in Chapter 2, Mediator Skill Set, think about the language that the other person is using and mirror the tone and words if you can.
- Start to understand the issues: This is where you start to obtain some information or clarification of the issues from the perspective of the party. This is probably more for the benefit of the party than of any real useful preparation for you as the mediator. It gives the party an opportunity to articulate their issues and concerns and start to think about how they will do this at the mediation itself. My practice is to generally let the individual talk with minimal questions for clarification or to demonstrate listening. I will then conclude with a summary of what I have heard with some reframing (see Chapter 2, Mediator Skill Set). A very useful question to ask here is what the person wants to happen or what are they hoping for in terms of an outcome; this can encourage parties to start to think about possible outcomes or solutions and look to the future.
You will find your own style and way of doing things that work naturally for you, but here is a list of the sorts of things that I would generally cover in a pre-mediation discussion:
- An explanation of the key principles, particularly explaining my neutrality, my role as a facilitator rather than a judge, and that the power is in the parties' hands to reach a solution.
- Emphasizing that the process is voluntary and that they can walk away at any time.
- Emphasizing the confidentiality of the process and an explanation that I will ask the parties to sign an agreement committing to the confidentiality (see the following section). I will provide a copy of the agreement in advance of the meeting so that they have an opportunity to read it beforehand.
- An explanation of the process and an outline of what will happen throughout the day.
- Detailing the opening statements and emphasizing that in the first stage, each party has an uninterrupted opportunity to make a statement (this is explained further shortly).
- Suggesting that the person think carefully about what they want to say and perhaps make some bullet point notes for the purposes of their opening statement. Clarify who will go first with the opening statements.
- Assuring parties that if they need a break during the day or wish to speak to me privately, then they simply need to ask.
- Explaining that wherever possible, the parties will all remain together but if necessary, we can have individual sessions. For example, if matters are circling, you feel that something is not being said, or if requested to do so.
- If an agreement is reached, then this may be recorded in a written agreement. Such an agreement would remain confidential unless there is agreement otherwise.
- Clarify the arrangements for the day, for example, arrival times, the venue, and that they should set aside the whole day.
- Invite the individual to contact me if they have any other queries or concerns in advance of the day.
The most important aspect of these discussions is to try and put the person at ease and to answer any questions that they may have openly and honestly. This is the start of you establishing rapport and trust so try and match your tone and words. There is a lot of information to pass on and not all of it will stick first time, hence the need to repeat much of this on the day as well.