Mediation Process and Procedure
The Mediation Process and Procedure domain tests your command of the sequence, the mediator's interventions, and the legal framework around confidentiality and settlement. Expect questions on styles, caucus rules, authority to settle and how settlements are recorded and enforced.
Styles and models
Facilitative mediation leaves outcome and evaluation to the parties. Evaluative mediation allows the neutral to assess merits and likely outcomes. Transformative mediation targets empowerment and recognition rather than settlement. Narrative mediation deconstructs conflict stories. Shuttle mediation keeps parties apart; co-mediation pairs neutrals, often for cross-cultural or family cases.
The typical sequence
Referral and agreement to mediate (terms, fees, confidentiality, authority); convening and pre-mediation calls; opening statements and ground rules; information gathering and agenda setting; joint exploration; private sessions (caucuses); option generation and reality testing; bargaining and package deals; drafting and signing the settlement; closing and follow-up.
Confidentiality and privilege
Mediation communications are confidential and generally inadmissible. Statutory protection exists in some jurisdictions, for example under the EU Mediation Directive 2008/52/EC and equivalent national provisions; contract and without prejudice privilege do the rest. Exceptions include threats of harm, child protection, money laundering, fraud, and disclosure required by law or necessary to enforce the settlement.
Recording the outcome
A settlement agreement signed by parties with authority is a contract. It can be recorded as a consent order or Tomlin order, or enforced as a mediated settlement under the Singapore Convention where the criteria are met.
Worked example
In a construction mediation, the contractor denies delay. The mediator learns in caucus that the employer's real concern is cash flow, not liability. Without disclosing the caucus content, the mediator asks whether staged payment over nine months would be acceptable. The contractor, whose BATNA is a costly arbitration, agrees. The mediator ensures both representatives have board authority, then has the settlement signed before the room disperses.
Traps
Describing the mediator as a judge or decision-maker; assuming confidentiality is absolute; disclosing caucus information without permission; allowing signature by a representative without authority; overlooking the enforcement route.