by Guest Blogger – Stephen Dickinson

At BRS, we are always focussed on ensuring that our clients are gaining insights as to the current infrastructure industry challenges and opportunities. Given this, we are delighted that Stephen Dickinson of Ansr. Dispute Resolution will be providing a series of blogs that work through how our clients can benefit from understanding mediation and dispute resolution and how it can benefit their projects and organisations. You can find out more about mediation and Ansr. at

The Mediation Process

In my previous blog, I answered the question, “So, What is Mediation?” by reference to the “Five W’s”, Who? What? Where? When? Why? As a follow-up, I thought it would be helpful to describe the most commonly applied mediation process, namely facilitative mediation.

As is the case with relatively “new” processes across all industries and professions (although mediation has been around for many years), the word mediation brings with it many misconceptions.  The reasons of this are many and varied, including both state and private bodies labelling the dispute resolution processes that they practice as mediation when this is not the case, and members of various professions (including the legal profession) promoting themselves as mediators without the necessary qualifications and accreditation. Unfortunately, this causes those that have participated in a mediation (or what they thought was a mediation) to not fully understand the process or, even worse, be reluctant to participate in a mediation in the future.

To become a nationally accredited mediator, one must successfully complete a comprehensive mediator training program and subsequent practical assessment that meet the National Mediator Accreditation System (NMAS) Approval Standards, following which accreditation can be obtained through a Recognised Mediator Accreditation Body (RMAB). Importantly, Nationally Accredited Mediators must have appropriate professional indemnity insurance, conduct a set number of mediations and complete a set number of hours of Continued Professional Development (CPD) to maintain their accreditation.

The National Mediator Standards Board is charged with the ongoing development and implementation of the NMAS and describes mediation as a process that creates the opportunity for parties to:

  • Identify the issues in dispute.
  • Discuss and better understand the issues.
  • Design creative outcomes that meet their needs and objectives.

This process, commonly referred to as facilitative mediation, involves various stages as follows:

  • Mediator opening statement, where the mediator will explain the process and lay the groundwork (as well as the ground rules) for sensible and productive dialogue between the parties.
  • Parties’ opening statements, allowing the parties to explain why they are there (without interruption).
  • Reflection and summary, being an opportunity for the mediator and the parties to demonstrate that they understand the matters that have been raised.
  • Agenda setting, effectively identifying the issues that need to be resolved (as succinctly and impartially as possible).
  • Issue exploration, to broaden the parties’ understanding of the issues.
  • Private sessions (between the mediator and each of the parties separately), to canvas options in a confidential setting.
  • Negotiation, where the parties return to canvas, generate and evaluate options with the support of the mediator.
  • Further private sessions, if necessary.
  • Agreement and closure, with a view to recording any agreed terms in writing and committing to an action plan.

It is an integral aspect of this process that the first five stages (being the understanding and exploration stages) focus on the past and present, with the final four stages (being the problem solving and resolution stages) focussing on the future. Why is this important? Because mutually satisfactory and durable outcomes are best achieved when parties understand and acknowledge all issues underlying their dispute, whereas the opposite is commonly achieved when parties (and mediators) attempt to come up with easy and hence ill-conceived answers for the sake of expedience and avoidance. Recognising this is of particular importance where parties are required or hope to maintain a working or personal relationship moving forward.

Notably, it is widely accepted that the above process may not be suitable for all types of disputes, and that certain stages may be swapped or even skipped if doing so will assist the parties resolve their dispute. Indeed, mediators should understand the need, and be well-equipped, to apply fluid rather than prescriptive processes, whilst applying basic principles and accounting for the needs and interests of the parties.

If the parties to a dispute are all focussed on financial and/or practical outcomes, the time spent on the earlier stages of the facilitative model may be limited, whereas if one or more parties introduce historical and/or emotive issues, it is imperative that such matters be aired and acknowledged. Whether this occur in a joint session involving all parties (which can, of course, be counterproductive) or a private session with the mediator alone is yet another question that a skilled mediator will need to consider. The reality is that no two disputes are the same, and to think otherwise is ignoring basic human experience and behaviour.

To learn more about mediation and the National Mediator Accreditation System, or to ensure you are engaging a nationally accredited mediator (you wouldn’t engage a builder without a builder’s licence, would you?), visit the National Mediator Standards Board at

In my next blog, I will consider the benefits of following dispute resolution clauses and processes now prescribed in most major project and infrastructure contracts.