Timing of Mediation

Mediation is possible at any stage of a dispute. It can be a first step (far before formal proceedings) on the way to settling a dispute when negotiations have not reached a satisfactory conclusion or have reached an impasse. Mediation can also be engaged in at any time during litigation or arbitration, when the parties wish to interrupt the same to explore the possibility of reaching an agreement.

The starting point is a mediation agreement, whereby the parties agree to submit the dispute to mediation. This agreement may appear in a contact signed by the parties or be established when a dispute arises. Available forms are available from every reputable organization involved in the mediation process.

A mediator is then appointed, and the mediator’s fees are set in a separate agreement.

When Is it Appropriate to Initiate, Continue and Finalize Working with a Mediator?

The interventions of the mediator commence as of the moment he or she learns that the parties wish to participate in the process and continues until the process culminates, independently of the outcome.

Mediation goes through different stages during which the parties and/or the mediator play different roles in an attempt reach the goals set by the parties.

Once appointed, the mediator holds several separate and joint preliminary meetings with the parties, generally over the phone. The mediator establishes a working program, specifies the documents, if any, that he or she considers the parties should prepare before their first meeting, within the time frame and terms set, and determines the date of the first meeting. All of this can and should be done in a week or a few weeks.

At the first meeting with all present, including necessarily the decision-makers on each side, the mediator and the parties will introduce themselves and the mediator will set the basic rules for the proceedings (which are not obligatory but depend on the willingness of the parties, who decide on how to manage the proceeding and hopefully settle the dispute). The mediator will emphasize his or her neutrality and impartiality and will speak about the confidentiality of the process. The controversial issues and the positions of the parties will likewise be identified, with a view to finding possible solutions to the dispute. Typically, each party presents its positions, which are heard by the other side in the presence of the mediator.

The methodology the mediator applies will depend on a number of considerations, such as the profile of the parties, the number of persons involved, the complexity of the conflict, the different positions taken by the parties, the cultural context and other factors.

The mediator will then meet with each of the parties separately. Additional joint meetings may take place.

The skills of the mediator include the ability to listen, question, visualize and synthesize what the parties are expressing, in one manner or another, when setting out their positions.

Depending on the issues at stake and their complexity, the monetary importance of the dispute and the distance between the positions taken by the respective parties, the meetings held may last one day, several days or even longer.

The intervention of the mediator ends either with the settlement and the adoption of an agreement by the parties, or, alternatively, with a failure on the part of the parties to reach an agreement.

The entire process can be completed in as little as a few weeks or as long as a month or two. More complex cases deserve more time for resolution, though even a longer mediation will save much more in time and money than an arbitration or litigation.
©2013 International Trademark Association