Mediation is one of those processes that is easy to describe in a paragraph but harder to understand until you have been through it. The description — “a neutral third party helps the parties reach a settlement” — tells you what mediation is, but not what it feels like, or what the mediator is actually doing.
Here is a more honest account.
Before the day
The work starts before anyone arrives. A mediator who has read the papers properly — the position statements, the key documents, the correspondence — arrives with a picture of the dispute, the personalities involved, and the likely sticking points. That preparation matters. A day spent bringing the mediator up to speed is a day not spent resolving the dispute.
I also think about structure. Where is the gap between the parties likely to be hardest to bridge? Are there any obvious creative solutions that neither side seems to have considered? Is there anything in the papers that suggests the dynamic between the parties will be difficult to manage?
The opening session
Most mediations begin with a joint session — both parties (and their solicitors) in the same room. I use this to set out the process, confirm the ground rules (and in particular the confidentiality of everything said during the day), and invite each party to say something about their position.
The joint session is not a debate. I do not want parties to argue with each other at this stage. Its value is in ensuring that both sides have heard each other’s position directly — not filtered through solicitors’ letters — and in giving me a read on the dynamics between them. How do they speak to each other? Is there anger, or exhaustion, or a sense that both parties would quite like this to be over? All of that shapes how I approach the private sessions.
Some parties elect not to have a joint session, and that is fine. There are circumstances — particularly where the relationship between the parties is very damaged, or where one party is concerned about how they will react under pressure — where going straight to private sessions is the right call.
The private sessions
This is where most of the work happens. Once the parties have separated into different rooms, I shuttle between them in a series of private sessions — called caucuses.
In each caucus, I am doing several things at once. I am listening — to what the party says, but also to what they are not saying, and to the gap between their stated position and their underlying interests. A party who opens by saying “I want my legal costs paid in full” may, in the course of the session, reveal that what they really want is an acknowledgement that they were treated badly. Those are very different things, and the settlement that resolves the dispute will need to address the real interest, not just the stated one.
I am also testing. Not aggressively — I am not trying to demolish anyone’s case — but honestly. If a party has a weak point in their position, they need to have thought about it before they can negotiate effectively. My job is to help them see their case clearly, including the parts of it that are less strong. That is sometimes uncomfortable, but it is necessary.
Everything said in a caucus is confidential. I will not tell the other side what you have told me without your permission. That confidentiality is fundamental to the process — it is what allows parties to speak candidly in a way they cannot in open correspondence or before a court.
Moving towards settlement
As the day goes on, a picture begins to form. I develop a sense of where each party’s real limits are — not their opening positions, but the point below which they will not go. My job is to help each party move from their stated position towards that point, and to find an overlap that both sides can accept.
This involves a lot of listening, and a lot of patience. Settlement rarely happens at 11am. More often, the significant movement comes in the afternoon, sometimes the late afternoon, as the parties have had time to absorb what they have heard and to feel the cumulative weight of the day.
It also sometimes involves creativity. A boundary dispute might settle with a practical arrangement about the shared fence that neither party’s solicitor had thought to suggest. A dilapidations claim might settle with a payment structure that works for both sides’ cash flow. A commercial dispute might settle with a future trading arrangement as part of the deal. I keep an eye out for options that neither side has considered but that might resolve the underlying interests better than a simple cash payment.
When it is difficult
Not every mediation settles, and not every day is straightforward. There are disputes where the gap between the parties is, at the end of the day, too wide to bridge. There are parties who come to mediation determined not to settle, or who are not authorised to agree to terms on the day. There are cases where one party’s legal position is so strong that the other side’s realistic options are limited, and where the honest advice — which I can give, even if I cannot tell them what to do — is that the case is not well-suited to mediation at this stage.
But in most cases, with enough time, enough patience, and a willingness to be honest on both sides, something can be found. That is what the day is for.