What can I expect at mediated meetings?
The following section describes the steps involved in a typical mediated meeting. The mediator will try to gauge the 'feel' of the meeting and run the process accordingly. The actual discussion can sometimes go back and forth, although the aim remains to complete the steps below.
The Environment Court Commissioner will arrive before the other parties. The mediator may use a whiteboard to record points made during mediation that provide parties with a visual memory. They do not form part of the public record.
More than one meeting may be required, depending on the size and complexity of the issue. The mediator will seek to begin and conclude the mediation as promptly and efficiently as possible. They will aim to conclude the mediation in one session if possible. Environment Court mediations may take more than one session, but only with the consent of all participants.
Private meetings
The mediator may wish to meet each party privately during a break-out session at this stage to help explain and weigh up the options. Parties may bring forward facts that might bring the dispute closer to a resolution but which they remain reluctant to disclose in open session. The mediator will respect any confidence. The mediator will adjourn mediation while private meetings are held (see below). The mediator will also make sure all parties have the same access to him or her if they require it.
The way the mediation process is run on the day may be different, as meetings are run according to the style and preferences of all parties and the mediator. Often an Environment Court Commissioner may have different practices and procedures than described here, to get the best out of the session for all parties.
The following steps will help you to understand the basic way a mediation meeting is run and why.
Step one: getting started
Description
The mediator:
- May open the meeting with a prayer or karakia if the parties consider that this would be appropriate.
- Will welcome everyone, introduce him or herself, check that all the parties are there and invite them to introduce themselves.
- Will make a short statement explaining what mediation is all about, describe their role and make sure there is a general willingness to enter freely into the spirit of mediation.
- May invite agreement on guidelines for conduct.
- May ask whether a site inspection would be appropriate.
- May advise the parties of the possible outcomes and the potential costs if they choose to proceed to litigation.
- Will find out if people have signing authority and whether they have to report back to the wider group that they may represent.
Main goal
To gain agreement on the protocol and process of mediation and to begin to establish trust in the process and the mediator.
Tasks to complete
- Check you agree on the agenda.
- Ensure you, and others, understand what to expect from the mediation.
- Ensure you have memorised the names of each of the parties (take notes as necessary).
- Aim for agreement on the protocol and ground rules for mediation (as you will have thought about in preparing for the meeting).
Step two: information gathering
Description
The mediator may invite each of the parties to give an overview as to how they see the issues today. Interruptions are discouraged.
Main goal
For everyone to get a feel for everyone’s needs, concerns and aspirations.
How you can contribute
- Express your concerns and feelings in an overview; you want others to understand your perspective.
- Explain what you think you might need if the future is to be better than your past experience with this dispute.
Step three: confirming the issues to be understood or resolved
Description
The mediator draws out and identifies the points of agreement and dispute between the parties. He or she may explain technical matters for the benefit of parties who do not have access to legal advice.
Main goal
To agree on a list of issues that will help provide a new way of viewing the dispute and will give a focus for the discussions. This stage helps identify what is common ground for all parties.
How you can contribute
- Check that the list of issues covers the areas you need to discuss.
Step four: discussing the issues
Description
The mediator will facilitate discussion between the parties over the issues. The mediator may discourage discussion regarding potential solutions so all issues can be comprehensively dealt with. While resolution may seem remote during this stage, a good airing of the issues means that the next stages usually proceed quite rapidly.
Main goal
To ensure everyone understands each other’s views on the issues.
How you can contribute
- Explain what is important to you, and what you are trying to achieve through these discussions.
- Listen to what is important to the other party and what they are trying to achieve.
- Ask and allow questions of each other and discuss any areas of misunderstanding.
- Suggest what new information might be required for future meetings, discuss who should gather it and how. Make sure you are satisfied with who, and how, new information will be gathered.
- Discuss how technical information might be presented so everyone can understand it.
- Be aware the process may feel ‘stuck’ at this stage – bear with it. It is quite normal and doesn’t mean it is not working.
Adjourning mediation
At any time during the process, the mediator can adjourn mediation to allow you, for example, to meet and get agreement from the wider group (such as iwi) that you represent on a particular issue, option or proposed action or to gain their approval for the final wording of the agreement to be signed. Mediators will normally set a tight timeframe for reporting back to ensure the discussions remain fresh and the process does not lose momentum. Depending on the length of any particular mediated meeting, the mediator will always take the opportunity to break for refreshments to allow the parties to talk informally.
Step five: identifying the options
Description
The mediator will invite parties to suggest how the identified issues might be resolved. A degree of ‘brainstorming’ is involved. There may be agreements ‘in principle’ to be confirmed at this stage.
Main goal
To give everyone the opportunity to raise a range of options that can be safely evaluated before making any commitments.
How you can contribute
- Confirm that options raised now carry no commitments, they are simply ideas to discuss – ie, they are discussed ‘without prejudice’.
- Put your ideas forward on what might be workable solutions.
- Look for options that will also satisfy the other parties.
- Avoid evaluating the options until everyone is confident that all possibilities have been listed.
Step six: evaluating the options
Description
The mediator assists the parties in considering whether proposed solutions would work in practice and what the implications of those options are. The various options can be ranked at this stage.
Main goal
To assess the options fairly so the solution that satisfies as many people as possible can be found.
How you can contribute
- Check options have been found for all the issues.
- Suggest objective and fair ways to evaluate the worth of options that will soon be raised – eg, that a solution must satisfy as many needs as possible.
- Discuss the options against objective criteria like peoples’ needs and satisfying the law.
- Say you need a private meeting with your group and/or your mediator if you wish to. The mediator will adjourn mediation to enable this to occur (see shaded box on page 16).
- Ask questions and make sure you understand the implications of the options.
- Check that it is still a good idea to remain in mediation. If another process will better satisfy your needs then consider seeking leave from the mediator to withdraw from the discussions.
Step seven: confirming an agreement
Description
The mediator will assist the parties in reaching an agreement (if possible) over the preferred solutions to the issues raised during the course of mediation.
Main goal
To ensure the best solutions are found and that there is commitment to these.
How you can contribute
- Be clear on your authority (eg, your group’s approval) to sign the agreement (see note above on private meetings).
- Decide whether in fact agreement can be reached. Unless all the parties have reached agreement and are comfortable with the proposed resolution, the mediator will not proceed and may suggest that the process be terminated. In this case the parties may decide to proceed to litigation (see comments regarding litigation in the next section).
Step eight: writing the agreement
Description
Assuming agreement has been reached, the parties prepare a draft consent order, which will then be presented to the Environment Court for its approval. It is common practice for agreements to be drawn up and signed on the spot so the parties leave the mediation confident that the dispute has been resolved. The mediator may close the meeting with a prayer or karakia and will thank the parties for their involvement and their commitment to resolution.
Main goal
To form an agreement that is specific, clear, understandable and workable. It should truly reflect the real needs of the parties.
How you can contribute
- You (or someone the parties choose) write a draft consent order (see note on consent orders in next section).
- In addition, private contracts or heads of agreement may be entered into (see note on private agreements in next section).
- You will need to check that the draft agreement reflects what you (or your group) are prepared to accept. You may wish to have someone check the agreement for you before signing, such as a lawyer.
- Give feedback on how you feel about the mediation process.
Avoiding common pitfalls
- Switch off your mobile phone and pager.
- Don’t assume you understand other parties and that they understand you.
Check for understanding by:
- summarising what you understand they are saying
- asking if you have summarised correctly
- asking the other parties to summarise what they understood you said
- giving them feedback on whether they heard you accurately
- repeating messages until they are clearly understood.
- Avoid continuing to work from different sets of information and knowledge. Agree on a common set of information on technical topics. Agree on who will undertake research and how information will be gathered.
- Be proactive. People need to know everyone is participating equally and not simply reacting to what others say.
- Don’t feel forced to stick with mediation. Try not to be pressured. Ask yourself, is the agreement worth making? If another process will better achieve your objectives - leave the mediation.
- Remember the other parties are human too. They are likely to be feeling the same frustration, anxiety, anticipation and pressure as you may be. Allow them to express their emotions without taking it personally.
- Respect each other’s right to speak without interruption. Don’t use personal attacks or put-downs.
- Be aware of how long and how often you speak so all parties have an opportunity to contribute to discussion.
- Speak for yourself (for example, ‘I think …’ and ‘I feel …’ rather than ‘Everyone knows …’ or ‘You should …’
- Avoid silence. The danger of lengthy silence is the risk of other parties assuming the worst due to lack of feedback.
- Recognise the value of both viewing issues holistically and having a specific focus. Accept ambiguity and check you have understood the themes in what has been said.
- Ask for clarification from the mediator or other parties at any stage.
- Stay to the end, unless you wish to formally leave the mediation process.
- Any communication with the mediator outside a mediation session shall occur only through the Court’s Registry and with notice to all parties.
