LEGAL VIEWPOINT: Mediation scenario by Dr. AbdelGadir Warsama Ghalib, Principal Legal Counsel, Bahrain

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Dr AbdelGadir WarsamaGhalib, Principal Legal Counsel, Bahrain

Settlement of disputes is essential for business and other activities. However, there are different ways to seek settlement, including judicial process, arbitration, mediation and others. Herein, I will focus on mediation for its prime importance and rate of growth. To initiate a formal mediation, there are certain steps to be followed. To begin, it would be better for the mediator to start by introducing himself to the parties emphasizing his neutrality and professionalism and give them an opportunity to introduce themselves. Thereafter, there is a need for clear statement from the parties about the problem and their roles. Breaking the statement by collecting information including a framework time-table, general negotiations, identification of the problems, different options and working to reach an agreement.

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The mediator will arrange for the first introductory meeting, without hard feelings or uneasiness for any party. The more the mediator is experienced and qualified, the more the parties will feel at ease. The 1st impression about the mediator methodology and the introductory meeting is of paramount importance for all. The mediator gives opportunities for each to explain, however, the meeting shall be under his control. Some mediators will make general comments about the issue confirming the case based on data submitted.  Mediation guidelines will be set, and the mediator will briefly recap what comes as the issues. The opening statement will set out the ground rules for the mediation. The mediator will ask that if lawyers are present to join, however, parties should speak for themselves.

After the opening statement, the mediator will give each side the opportunity to speak uninterrupted. Most often, the person who requested the mediation session will go first. The statement is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party. The rationale behind the statement of the problem is not a search for the truth; it is just a way to help solve the problem.

The mediator will ask the parties open-ended questions to get to their views. The mediator may repeat back key ideas to the parties and summarize them. This normally helps the mediator to make rapport and to find common goals between the parties. Methods for developing options may include group processes, discussion groups or sub groups, or mediator proposals on the table for discussion by the parties. However, the most commonly used method is the caucus. Once the participants are committed to achieving a negotiated settlement, the mediator will propose a brainstorming session to explore potential solutions. This can lead to a final agreement, which diffuses the conflict and provides a new basis for future relations. The mediator may decide to hold private sessions with both parties in order to move the negotiations along. The caucus, which should be confidential, provides a safe environment and the goal of the session is to find some common grounds by exploring options and bring possible solutions for the parties to think about. Parties can also look for alternative solutions to their problems without committing themselves to offer the solutions as concessions. Achieving such steps, will help parties to overcome their dispute and reach an agreement through mediator, however, the final decision is left for their will.