Mock Mediation Guide - Law Society Of New South Wales, Australia Page 15
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16Issues) is one of, if not, the most important and challenging part of a mediation. Up to
this point the parties have been encouraged to communicate with the mediators
rather than each other so this stage heralds a change of focus. People in dispute
often cannot move on to consider settlement possibilities until they have had an
opportunity to ventilate, clarify or clear the air with each other. In fact the parties may
want or need to argue. This is why it can be counter-productive to rush to solutions or
into a private session with the parties too early.
Discussion
Purpose: Party A & B are encouraged to discuss each issue/question with the co-
mediators. While parties explore each issue, the co-mediators assist the parties by
directing communication between them particularly where parties get stuck on one
issue. Mediator Two “Let’s choose an issue to discuss!” Select an issue from the
whiteboard and work through these with the parties.
Exploring options that are available for each issue
Party A & B comes up with possible solutions under each issue. Mediator One
“These are certainly options and we will make a note of them” (Mediator One writes
these on the whiteboard). Identification and generating of settlement options plays a
vital role in moving parties towards agreements. The mediators did not suggest how
the parties might settle the matter but encouraged them to come up with their own
ideas. It should be noted that the mediator writes these up as options rather than as
solutions. Describing ideas as options prevents one side or the other immediately
rejecting an idea from which a solution may grow, simply because it came from the
other side. The idea in mediation is to get out as many options as possible no matter
how bizarre and unworkable they may at first appear. The rule is no evaluation or
rejection at any early stage. Questions play an important role in mediation. Mediators
should avoid asking questions that simply require a Yes or No answer. These options
can emerge from co-mediators asking open-ended questions. “What do you think or
how do you think” requires a more creative response than simply a “Yes” or “No”. The
question assumes that there is something everybody can do.
Mediator Two could ask “Any more ideas7 or . . . “Have you thought of who would
assume responsibility for a particular task” Students can continue to develop this idea
if they wish until they agree on solutions or outcomes of their choice. The Mediators
will then encourage the students to commit this part of the agreement on this issue to
the whiteboard
Agreement
Party A & B negotiates the terms and conditions of an agreement.
Mediators One & Two Assist by asking questions to see if the agreement can work
under various circumstances.
Page 15
The Law Society of New South Wales
Mock Mediation, 170 Phillip Street, Sydney NSW 2000
T: (02) 9926 0253 E:
.au
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