Mediated meetings can vary. A mediator always tries to gauge the feel of the meeting and run the process accordingly. The discussion can sometimes go back and forth, although the aim remains to work through the steps (see below).
The court’s mediation suite has electronic and white board facilities. You can project plans onto a screen, and record text so the parties can work together. If you would like to share information that requires a projector and screen, notify the court registrar well in advance. The court may be able to provide suitable equipment or may request that the parties bring their own equipment.
The mediator will try and set an agenda to guide the discussion. It is helpful for parties to think ahead and note the topics to address. This helps to direct the discussion, especially at the beginning when you are getting to understand each other. These notes are a helpful reminder to the parties during the meeting, but 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 try to ensure meetings are efficient, and start and end promptly. They will aim to complete the mediation in one session if possible.
Private meetings
The mediator may wish to meet each party privately during a break-out session, to help explain and weigh up the options. Mediation is adjourned while private meetings take place.
In a private meeting, parties may raise facts that might bring the dispute closer to a resolution but which they don’t want to disclose in an open session. The mediator will respect any confidences. The mediator will also make sure all parties have equal access to him or her if they require it.
Although meetings will reflect the style and preferences of the parties and the mediator, they will generally follow these steps:
Description
The mediator:
- may open the meeting with a prayer (or karakia) if the parties consider this 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 and their own role, and ensure the parties are willing 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 with court action
- will confirm that the people present have signing authority in accordance with the Environment Court Practice Note.
Main goal
To gain agreement on the protocol and process of mediation, and to begin to build trust in the process and the mediator.
For participants: how you can contribute
- Ensure you, and others, understand what to expect from the mediation.
- Memorise the names of everyone present (take notes if necessary).
- Aim to agree on the protocol and ground rules for mediation.
- Ensure you participate to set an agenda of issues at the start of the mediation.
Description
The mediator may invite each party to give an overview of how they see the issues today. Interruptions are discouraged.
Main goal
For everyone to get a feel for each other’s needs, concerns, and aspirations.
For participants: 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.
Description
The mediator outlines the points of agreement and dispute between the parties. The mediator is not there to provide legal advice.
Main goal
To agree on a list of issues that will help provide a new way of viewing the dispute and give a focus for the discussions. This stage helps identify what is common ground for all parties.
For participants: how you can contribute
- Check that the list of issues covers the areas you need to discuss.
Description
The mediator facilitates the discussion between the parties. The mediator may discourage discussion about potential solutions for the time being, to allow all issues to be comprehensively dealt with. Although resolution may seem remote at this stage, a good airing of the issues means that the next stages usually proceed quite quickly.
Main goal
To ensure everyone understands each other’s views on the issues.
For participants: 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 parties and what they are trying to achieve.
- Ask and allow questions of each other, and discuss any misunderstandings.
- Suggest what new information might be required for future meetings, and discuss who should gather it and how. Make sure you are satisfied with what’s agreed. Discuss how to present technical information so everyone can understand it.
- Be aware that the process may feel ‘stuck’ at this stage – bear with it. This is quite normal and doesn’t mean that mediation isn’t working.
Adjourning mediation
At any time during the process, the mediator can adjourn mediation (break off or postpone a meeting). An adjournment might, for example, allow a representative to meet and get agreement from their wider group (such as iwi), or to gain their approval for the final wording of the agreement.
Mediators normally set a tight timeframe for reporting back after an adjournment, to ensure the discussions remain fresh. The mediator will always take the opportunity to break for refreshments, to allow the parties to talk informally.
Remember, the mediation is confidential to the parties present. So any consultation with the wider group needs to take place in that context and also with an understanding that the wider group has not been part of the mediation. Representatives should consider how to keep supporting the mediated outcome, when meeting with a wider group outside the mediation room.
Description
The mediator will invite parties to suggest how they might resolve the issues. This could include some brainstorming. At this stage there may be agreements to confirm ‘in principle’.
Main goal
To give everyone the opportunity to raise various options to evaluate safely, before making any commitments.
For participants: how you can contribute
- Confirm that any options raised now carry no commitments – they are simply ideas to discuss (ie, they are discussed ‘without prejudice’).
- Put forward your ideas on what might be workable solutions.
- Look for options that will also satisfy the other parties.
- Avoid evaluating options until everyone is confident that they have listed all possibilities.
Description
The mediator helps the parties consider whether the proposed solutions would work in practice and what the implications are. The various options can be ranked at this stage.
Main goal
To assess the options fairly, in order to find the solution that satisfies as many people as possible.
For participants: how you can contribute
- Check that you have options for all the issues.
- Suggest objective and fair ways to evaluate the options (eg, that a solution must satisfy as many needs as possible).
- Discuss the options against objective criteria, such as people’s needs, and legal requirements.
- Ask for a private meeting with your group or your mediator if you wish to. The mediator will adjourn mediation to do this.
- Ask questions and make sure you understand the implications of all the options.
- Check that it is still a good idea to remain in mediation. If you don’t want to, consider seeking leave from the mediator to withdraw from the discussions.
Description
The mediator will help the parties agree (if possible) about the preferred solutions to the issues raised during mediation.
Main goal
To ensure the parties find the best solutions, and are committed to them.
For participants: how you can contribute
- Be clear about your authority to sign the agreement.
- Decide whether everyone can reach agreement. Unless all the parties agree and are comfortable with the proposed resolution, the mediator will not proceed and may suggest ending the process. In this case, the parties may decide to proceed to litigation.
Description
The parties prepare a mediation agreement. This is written up as a draft consent order to be presented to the Environment Court Judge for approval. Agreements and sometimes consent orders are usually drawn up and signed on the spot, so the parties leave the mediation confident that they have resolved the dispute.
The mediator may close the meeting with a prayer (or karakia), and will thank everyone 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 needs of the parties.
For participants: how you can contribute
- You (or someone the parties choose) write a draft consent order.
- In addition, you may enter into private contracts or heads of agreement.
- 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.
During mediation:
- Switch off your mobile phone – or at least turn them on to silent mode.
- Don’t assume that you understand other parties and that they understand you. Check for understanding by:
- summarising what you think they are saying
- asking if you have summarised correctly
- asking them to summarise what they thought you said
- giving them feedback on whether they heard you accurately
- repeating messages until they are clearly understood.
- Avoid working from different sets of information and knowledge. Agree at the start on a common set of information on technical topics. Agree on who will do any research and how you will gather information.
- Don’t feel forced to stick with mediation. Try not to be pressured. Ask yourself, is the agreement worth making? If another process (eg, a court hearing) will better achieve your objectives, leave the mediation.
- Remember the other parties are human too. They are likely to be feeling the same frustrations, 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 everyone has an opportunity to contribute.
- Speak for yourself (eg, say ‘I think…’ and ‘I feel…’ rather than ‘Everyone knows…’ or ‘You should…’.
- Avoid long silences. There is a risk of other parties assuming the worst due to lack of feedback.
- 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.
- If you want to communicate with the mediator outside a mediation session, this can only take place through the court’s registry and with notice to all parties.
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What can I expect at mediated meetings?
February 2021
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