Mediation is a voluntary process
that is private and confidential, and any settlement reached through
mediation is based upon the free choice of the parties.
To Start
In cases where a commercial contract
contains a mediation clause, its provisions should be followed.
Otherwise, the mediation process is initiated by the parties themselves
who simply agree to mediate their dispute and select a mediator.
Alternatively, one party may ask a mediator to invite other parties
to participate in mediation. In any case, the mediator should be
a neutral person who has no financial or personal interest in the
dispute. A written agreement to mediate is provided by the mediator
and signed by the parties before the mediation begins.
Participants
Each party must include in the
mediation an individual who has the authority to resolve the entire
dispute. In addition, a party may be represented by other persons
including, for example, attorneys and technical experts.
Preliminary Discussions
The mediator firsts communicates
directly with each party or its representative to obtain background
information and documents and to schedule proceedings. Next, a
joint meeting or conference call is held during which each party
has an opportunity to present its view of the dispute and exchange
information with other parties and the mediator. The mediator may
conduct further preliminary discussions with the parties, as needed.
Mediation Session
The next step is a formal mediation
session. In some cases the formal mediation session is conducted
by teleconference but, traditionally, it involves a face-to-face
meeting of the parties including their respective decision-makers.
The mediation session includes joint meetings of the parties under
the guidance of the mediator, as well as individual discussions
or caucuses with the mediator. The intention is to reach a complete
resolution of the dispute and to reduce that agreement to a signed
writing by the end of the formal mediation session.
Subsequent Discussions
If needed to reach a final agreement,
the mediator will conduct further joint or individual discussions
with the parties after the formal mediation session.
Technology Neutrals does not provide
legal representation or legal advice.
© Technology Neutrals 2007
