Parties agree to mediate
Mediation is a voluntary process. Before the mediation process can begin, the parties must agree in writing to procedures that they determine between themselves or to an existing set of procedures, such as those provided by BCDR-AAA.
Mediation agreements may be included as part of a contract that specifies how disputes arising out of that contract are to be resolved. Alternatively, parties frequently agree to mediate following the onset of a dispute regardless of contractual stipulations.
In short, if parties agree, the mediation can take place at the time and location of their choosing with the mediator they select.
Appointment of the mediator
Mediation begins with the selection of the mediator. The parties are encouraged to mutually agree upon a mediator, from either BCDR-AAA’s international pool of mediators, or AAA’s roster of mediators. Alternatively, the parties may choose a mediator independently from the BCDR-AAA .
If the parties require assistance in selecting a mediator, they may specify what particular background and expertise they are seeking and the Chamber will provide a list of candidates to meet their specifications.
In addition to the mediator, the parties must also agree upon the language in which they wish to carry out mediation. If the parties cannot agree, the language(s) of the mediation shall be that of the document containing the mediation agreement.
Preparation for mediation session
The parties or the mediator may wish to have a preparatory conference call to discuss the filing of the mediation briefs, settlement authority and mediation conference participants. At every mediation session, each party shall have a representative with settlement authority present.
Mediators generally begin the session with a brief outlining the procedures, ground rules and the confidentiality of the proceedings. Each party is given time to describe its respective view of the dispute. The mediator often asks questions to clarify issues for each of the disputants, while defining the perceptions of the parties and their interests.
Mediators also make use of ‘caucuses’ – private meetings – with each side in order to seek to make incremental progress by exchanging possible settlement offers. The mediator then works towards narrowing the differences between the parties. When the parties reach a settlement, the terms are confirmed or agreed to in writing by the parties.
In the unlikely event of an agreement not being reached by mutual resolution, parties may consider arbitration to agree any remaining issues.