The functional stages of the mediation process

The functional stages of the mediation process are:
1) Introduction and Opening Statement
2) Joint Session
3) Separate Session(s)
4) Closing
STAGE 1: INTRODUCTION AND OPENING STATEMENT
Objectives
• Establish neutrality
• Create an awareness and understanding of the process
• Develop rapport with the parties
• Gain confidence and trust of the parties
• Establish an environment that is conducive to constructive negotiations
• Motivate the parties for an amicable settlement of the dispute
• Establish control over the process

Seating Arrangement in the Mediation Room
At the commencement of the mediation process, the mediator shall ensure that the parties and/or
their counsel are present.
There is no specific or prescribed seating arrangement. However, it is important that the seating
arrangement takes care of the following:
• The mediator can have eye-contact with all the parties and he can facilitate effective
communication between the parties.
• Each of the parties and his  counsel are seated together.
• All persons present feel at ease, safe and comfortable.

Introduction
• To begin with, the mediator introduces himself by giving information such as his name, areas of
specialization if any, and number of years of professional experience.
• Then he furnishes information about his appointment as mediator, the assignment of the case
to him for mediation and his experience if any in successfully mediating similar cases in the past.
• Then the mediator declares that he has no connection with either of the parties and he has no
interest in the dispute.
• He also expresses hope that the dispute would be amicably resolved. This will create confidence
in the parties about the mediator's competence and impartiality.
• Thereafter, the mediator requests each party to introduce himself. He may elicit more information
about the parties' and may freely interact with them to put them at ease.
• The mediator will then request the counsel to introduce themselves.
• The mediator will then confirm that the necessary parties are present with authority to negotiate
and make settlement decisions
• The mediator will discuss with the parties and their counsel any time constraints or scheduling
issues
• If any junior counsel is present, the mediator will elicit information about the senior advocate
he is working for and ensure that he is authorized to represent the client.
The Mediator's Opening Statement
The opening statement is an important phase of the mediation process. The mediatorexplains in a
language and manner understood by the parties and their counsel, the following:
• Concept and process of mediation
• Stages of mediation
• Role of the mediator
• Role of advocates
• Role of parties
• Advantages of mediation
• Ground rules of mediation

The mediator shall highlight the following important aspects of mediation:
• Voluntary
• Self-determinative
• Non-adjudicatory
• Confidential
• Good-faith participation
• Time-bound
• Informal and flexible
• Direct and active participation of parties
• Party-centred
• Neutrality and impartiality of mediator
• Finality
• Possibility of settling related disputes
• Need and relevance of separate sessions
The mediator shall explain the following ground rules of mediation:
• Ordinarily, the parties/counsel may address only the mediator
• While one person is speaking, others may refrain from interrupting
• Language used may always be polite and respectful
• Mutual respect and respect for the process may be maintained
• Mobile phones may be switched off
• Adequate opportunity may be given to all parties to present their views
Finally, the mediator shall confirm that the parties have understood the mediation process and the
ground rules and shall give them an opportunity to get their doubts if any, clarified.

STAGE 2:  JOINT SESSION
Objectives
• Gather information
• Provide opportunity to the parties to hear the perspectives of the other parties
• Understand perspectives, relationships and feelings
• Understand facts and the issues
• Understand obstacles and possibilities
• Ensure that each participant feels heard
Procedure
• The mediator should invite parties to narrate their case, explain perspectives, vent emotions and
express feelings without interruption or challenge. First, the plaintiff/petitioner should be
permitted to explain or state his/her case/claim in his/her own words. Second, counsel would
thereafter present the case and state the legal issues involved in the case. Third, defendant/
respondent would thereafter explain his/her case/claim in his/ her own words. Fourth, counsel
for defendant/respondent would present the case and state the legal issues involved in the case.
• The mediator should encourage and promote communication, and effectively manage
interruptions and outbursts by parties.
• The mediator may ask questions to elicit additional information when he finds that facts of the
case and perspectives have not been clearly identified and understood by all present.
• The mediator would then summarize the facts, as understood by him, to each of the parties to
demonstrate that the mediator has understood the case of both parties by having actively listened
to them.
• Parties may respond to points/positions conveyed by other parties and may, with permission,
ask brief questions to the other parties.
• The mediator shall identify the areas of agreement and disagreement between the parties and
the issues to be resolved.
• The mediator should be in control of the proceedings and must ensure that parties do not 'take
over' the session by aggressive behaviour, interruptions or any other similar conduct.
• During or on completion of the joint session, the mediator may separately meet each party with
his counsel, usually starting with the plaintiff/petitioner. The timing of holding the separate

session may be decided by the mediator at his discretion having regard to the productivity of the
on-going joint session, silence of the parties, loss of control, parties becoming repetitive or
request by any of the parties.  There can be several separate sessions. The mediator could revert
back to a joint session at any stage of the process if he feels the need to do so.
STAGE 3: SEPARATE SESSION
Objectives
• Understand the dispute at a deeper level
• Provide a forum for parties to further vent their emotions
• Provide a forum for parties to disclose confidential information which they do not wish to share
with other parties
• Understand the underlying interests of the parties
• Help parties to realistically understand the case
• Shift parties to a solution-finding mood
• Encourage parties to generate options and  find terms that are mutually acceptable
Procedure
(i) RE - AFFIRMING CONFIDENTIALITY
During the separate session each of the parties and his counsel would talk to the mediator in
confidence. The mediator should begin by re-affirming the  confidential nature of the process.
(ii) GATHERING FURTHER INFORMATION
The separate session provides an opportunity for the mediator to gather more specific information
and to follow-up the issues which were raised by the parties during the joint session. In this stage
of the process:-
• Parties vent personal feelings of pain, hurt, anger etc.,
• The mediator identifies emotional factors and acknowledges them;
• The mediator explores sensitive and embarrassing issues;
• The mediator distinguishes between positions taken by parties and the interests they seek to
protect;
• The mediator identifies why these positions are being taken (need, concern, what the parties

hope to achieve);
• The mediator identifies areas of dispute between parties and what they have previously agreed
upon;
• Common interests are identified;
• The mediator identifies each party's differential priorities on the different aspects of the dispute
(priorities and goals) and the possibility of any trade off is ascertained.
• The mediator formulates issues for resolution.
(iii) REALITY - TESTING
After gathering information and allowing the parties to vent their emotions, the mediator makes
a judgment whether it is necessary to challenge or test the conclusions and perceptions of the
parties and to open their minds to different perspectives. The mediator can then, in order to
move the process forward, engage in REALITY-TESTING.  Reality-testing may involve any or
all of the following:
(a) A detailed examination of specific elements of a claim, defense, or a perspective;
(b) An identification of the factual and legal basis for a claim, defense, or perspective or issues
of proof thereof;
(c) Consideration of the positions, expectations and assessments of the parties in the context
of the possible outcome of litigation;
(d) Examination of the monetary and non-monetary costs of litigation and continued conflict;
(e) Assessment of witness appearance and credibility of parties;
(f) Inquiry into the chances of winning/losing at trial; and
(g) Consequences of failure to reach an agreement.
Techniques of Reality-Testing
Reality-Testing is often done in the separate session by:
1. Asking effective questions,
2. Discussing the strengths and weaknesses of the respective cases of the parties, without
breach of confidentiality, and/or
3. Considering the  consequences of any failure to reach an agreement (BATNA/WATNA /
MLATNA analysis).

(I) ASKING EFFECTIVE QUESTIONS
Mediator may ask parties questions that can gather information, clarify facts or alter perceptions
of the parties with regard to their  understanding  and assessment of the case and their
expectations.
Examples of effective questions:
• OPEN-ENDED QUESTIONS like 'Tell me more about the circumstances leading up to the
signing of the contract'. 'Help me understand your relationship with the other party at the time
you entered the business'. 'What were your reasons for including that term in the contract?'
• CLOSED QUESTIONS, which are specific, concrete and which bring out specific information.
For example, 'it is my understanding that the other driver was going at 60 kilometers per hour at
the time of the accident, is that right?' 'On which date the contract was signed?' 'Who are the
contractors who built this building?'
• QUESTIONS THAT BRING OUT FACTS: 'Tell me about the background of this matter'.
'What happened next?'
• QUESTIONS THAT BRING OUT POSITIONS: 'What are your legal claims?' 'What are
the damages?' 'What are their defenses?'
• QUESTIONS THAT BRING OUT INTERESTS:  'What are your concerns under the
circumstances?' 'What really matters to you?' 'From a business / personal / family perspective,
what is most important to you?' 'Why do you want divorce?' 'What is this case really about?'
'What do you hope to accomplish?' 'What is really driving this case?'
(II) DISCUSSING  THE STRENGTHS AND WEAKNESSES OF THE RESPECTIVE
CASES OF THE PARTIES
The mediator may ask the parties or counsel for their views about the strengths and weaknesses
of their case and the other side's case. The mediator may ask questions such as, 'How do you
think your conduct will be viewed by a Judge?' or 'Is it possible that a judge may see the situation
differently?' or 'I understand the strengths of your case, what do you think are the weak points
in terms of evidence?' or 'How much time will this case take to get a final decision in court?' Or
'How much money will it take in legal fees and expenses in court?
(III) CONSIDERING THE CONSEQUENCES OF ANY FAILURE TO REACH AN
AGREEMENT (BATNA/WATNA /MLATNA ANALYSIS).
  BATNA Õ Best Alternative to Negotiated Agreement
  WATNA Õ Worst Alternative to Negotiated Agreement
  MLATNA Õ Most Likely Alternative to Negotiated Agreement

One technique of reality-testing used in the process of negotiation is to consider the different
alternatives to a negotiated settlement. In the context of mediation, the alternatives are 'the
best', 'the worst' and 'the most' likely outcome if a dispute is not resolved through negotiation in
mediation.  As part of reality-testing, it may be helpful to the parties to examine their alternatives
outside mediation (specifically litigation) so as to compare them with the  options available in
mediation. It is also helpful for the mediator to discuss the consequences of failing to reach an
agreement e.g., the effect on the relationship of the parties, the effect on the business of the
parties etc.
While the parties often wish to focus on best outcomes in litigation, it is important to consider
and discuss the worst and the most likely outcomes also. The mediator solicits the viewpoints
of the advocate/party about the possible outcome in litigation. It is productive for the mediator
to work with the parties and their advocates to come to a proper understanding of the best, the
worst and the most likely outcome of the dispute in litigation as that would help the parties to
recognize reality and thereby formulate realistic and workable proposals.
If the parties are reaching an interest-based resolution with relative ease, a BATNA/WATNA/
MLATNA analysis need not be resorted to. However if parties are in difficulty at negotiation
and the mediator anticipates hard bargaining or adamant stands, BATNA/ WATNA/ MLATNA
analysis may be introduced.
By using the above techniques, the mediator assists the parties to understand the reality of their
case, give up their rigid positions, identify their genuine interests and needs, and shift their focus
to problem-solving. The parties are then encouraged to explore several creative options for
settlement.
(iv) BRAIN STORMING
Brain Storming is a technique used to generate options for agreement.
There are 2 stages to the brain storming process:
1. Creating options
2. Evaluating options
1. Creating options:- Parties are encouraged to freely create possible  options for agreement.
Options that appear to be unworkable and impractical are also included. The mediator reserves
judgment on any option that is generated and this allows the parties to break free from a fixed
mind set. It encourages creativity in the parties. Mediator refrains from evaluating each option
and instead attempts to develop as many ideas for settlement as possible. All ideas are written
down so that they can be systematically examined later.

2. Evaluating options:- After inventing options the next stage is to evaluate each of the options
generated. The objective in this stage is not to criticize any idea but to understand what the
parties find acceptable and not acceptable about each option. In this process of examining each
option with the parties, more information about the underlying interests of the parties is obtained.
This information further helps to find terms that are mutually acceptable to both parties.
Brainstorming requires lateral thinking more than linear thinking.
Lateral thinking:  Lateral thinking is creative, innovative and intuitive. It is non-linear and
non-traditional. Mediators use lateral thinking to generate options for agreement.
Linear thinking: Linear thinking is logical, traditional, rational and fact based. Mediators use
linear thinking to analyse facts, to do reality testing and to understand the position of parties.
(v) SUB- SESSIONS
The separate session is normally held with all the members of one side to the dispute, including
their advocates and other members who come with the party. However, it is open to the mediator
to meet them individually or in groups by holding sub- sessions with only the advocate (s) or the
party or any member(s) of the party.
â Mediator may also hold sub-session(s) only  with the advocates of both sides, with  the
consent of parties. During such sub-session, the advocates can be more open and forthcoming
regarding the  positions and expectations of the parties.
â If there is a divergence of interest among the parties on the same side, it may be
advantageous for the mediator to  hold sub- session(s)  with parties  having common interest,
to facilitate negotiations. This type of sub-session may facilitate the identification of
interests and also prevent the possibility  of the  parties with divergent interests, joining
together to resist the settlement.
(vi) EXCHANGE OF OFFERS
The mediator carries the options/offers  generated  by  the  parties  from one side to the other.
The parties negotiate through the mediator for a mutually acceptable settlement.  However, if
negotiations fail and settlement cannot be reached  the case is sent bt back to the referral Court.

STAGE 4: CLOSING
(A) Where there is a settlement
• Once the parties have agreed upon the terms of settlement, the parties and their advocates
re-assemble and the mediator ensures that the following steps are taken:
1. Mediator orally confirms the terms of settlement;
2. Such terms of settlement are reduced to writing;
3. The agreement is signed by all parties to the agreement and the counsel if any representing
the parties;
4. Mediator also may affix his signature on the signed agreement, certifying that the agreement
was signed in his/her presence;
5. A copy of the signed agreement is furnished to the parties;
6. The original signed agreement sent to the referral Court for passing appropriate order in
accordance with the agreement;
7. As far as practicable the parties agree upon a date for appearance in court and such date is
intimated to the court by the mediator;
8. The mediator thanks the parties for their participation in the mediation and, congratulates
all parties for reaching a settlement.
• THE WRITTEN AGREEMENT SHOULD:
3 clearly specify all material terms agreed to;
3 be drafted in plain, precise and unambiguous language;
3 be concise;
3 use active voice, as far as possible. Should state clearly WHO WILL DO, WHAT, WHEN,
WHERE and HOW (passive voice does not clearly identify who has an obligation to perform
a task pursuant to the agreement);
3 use language and expression which ensure that neither of the parties feels that he or she has
'lost';
3 ensure that the terms of the agreement are executable in accordance with law;
3 be complete in its recitation of the terms;

3 avoid legal jargon, as far as possible use the words and expressions used by the parties;
3 as far as possible state in positive language what each parties agrees to do;
3 as far as possible, avoid ambiguous words like reasonable, soon, co-operative, frequent etc;
(B) Where there is no settlement
• If a settlement between the parties could not be reached, the case would be returned to the
referral Court merely reporting "not settled".  The report will not assign any reason for non
settlement or fix responsibility on any one for the non-settlement. The statements made during
the mediation will remain confidential and should not be disclosed by any party or advocate or
mediator to the Court or to anybody else.
• The mediator should, in a closing statement, thank the parties and their counsel for their
participation and efforts for settlement.

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