The conduct of the mediation process is the responsibility of the mediator. That responsibility covers many things such as laying down the ground rules, ensuring that each client is heard, equalizing the playing field, ensuring that financial disclosure is sufficient -without checking it forensically which is a task for clients and their advisers -and, sometimes, holding the ring on those few occasions when one person loses his or her cool.
I always include in that responsibility the setting of an agenda for each session. By that I don’t mean that I try to confine mediation clients in a straitjacket. I do however find that people, particularly ar a first session when it is all more than strange, are reassured if they feel that the session will have a structure.
Apart from points which I need to cover as a part of the mediation process itself, I do not however determine what is on any agenda. Before a first mediation meeting, I go through my assessment meeting notes in order to tease out the strands so that I know the points which will need to be covered. As any mediator, I have to be prepared for the issues which come up between sessions -or even in a session- which thrust themselves on to the agenda, however carefully it has been prepared!
The people who say what issues for resolution need to be on the mediation agenda are the clients themselves. That is one of the fundamentals of mediation. It is a forum for resolution of all the issues which the clients feel need to be resolved. Don’t get me wrong. If it seems that an issue is off the main points, I will have talked that through with the individual client at our assessment meeting. Setting the agenda does not mean an opportunity to sling mud as that contradicts another fundamental principle -respect for each other, the mediator and the mediation process itself.
What it does mean is that,if one client says that he or she will only mediate over finances when the other also wants to talk about arrangements for children, I have to test whether that limitation is absolute. If it is, that case is almost certainly not suitable for mediation. I am not talking about the many cases which come to me where a couple both only want to talk about their children and are happy to deal with finances through their solicitors.
What I am saying is that, if one client flatly refuses to discuss a subject which forms a vital element of the other’s desired agenda, then mediation is almost always not the way to proceed. One reason for that is that one aim of a mediator is to create a space where each client has equality in the negotiations. If one clients silences the other on a topic which is important to him or her before we even enter the mediation space, that equality does not exist.