As you progress through the process, it will begin to become clearer what the issues are and what is and is not agreed. Keep a note of any agreements as the day progresses so that you can refer back and clarify the terms or extent of any agreement at various stages.
It is always a good idea to take stock at regular intervals and summarize progress or otherwise even without progress. This helps parties to remain focused on the issues and also to realize what progress has been made; sometimes it can come as a surprise how much has actually been agreed along the way.
As you start to narrow the issues, it is often very helpful to agree what remains and to put these issues up on a flip chart. You can then structure the discussion around these issues and start to facilitate discussion around potential solutions.
If you get to the point that an agreement is being finalized, then my practice would usually be to commit this to writing. The purpose of this is to ensure that the parties are clear on what is being agreed and that they sign up and commit to this. That said, there are some situations when a written agreement may not be necessary, for example, where the mediation has resulted in a better understanding between the parties and that is sufficient.
It is important to finalize any agreement with the full participation of the parties. I would not recommend that you draft an agreement on their behalf and then ask them to sign it, as there is a danger that you have misinterpreted the agreement and will impose something on the parties that does not reflect their understanding. It is far better to agree the wording with the parties jointly so that they are fully involved in finalizing and concluding the agreement.
Be careful at this stage to make sure that both parties are fully in agreement. I have had a number of situations where the words spoken suggest agreement but the body language suggests otherwise. In other situations, there is a feeling that one party might feel a bit worn down by the process. If you sense this, I would suggest having a break and some individual sessions to check what else needs to happen for resolution or agreement. It might be tempting to ignore these signals or push for a settlement as that can be seen as success, but in reality this is likely to be short-lived if you have not really secured a full agreement that is workable or understanding.
In practice, apologies can cause difficulties in reaching an agreement. An apology from one of the parties (or on occasion both) can be extremely powerful in helping to resolve matters. However, I have had a number of situations where an apology has been given but the other party does not believe it to be genuine. Where there has been a loss of trust, there is often a perception that it is easy for someone to apologize as an easy option but that the apology is not really meant. In these situations, examples of very useful questions are:
- On a scale of 1-10, how effective is the apology that has been given?
- What would you want it to be?
- What would make it a 10 (or what do you want)?
- What else would help?
One final thing you will need to clarify is who (if anyone) the agreement can be shared with and confirm this in the agreement. It might be useful to share the agreement with a line manager or HR professional so that they can support the parties following the mediation and check in to make sure that the agreement is being implemented. However, it is for the parties to decide and agree this between them.
It might also be useful to include a review process as part of the agreement. A provision could be made that you (or maybe someone else) reviews the progress in two or three months' time. This may also be useful support following the mediation and may be an encouragement to do what has been agreed, but again this is up to the parties.
There are some examples of agreements provided in the appendix that may help to give an idea of the sort of things that might be included. However, the agreement can cover anything the parties feel helpful or relevant. The main point is that there is no need for anything complicated or detailed; what is important is that it is clear and understood by those concerned.