A mediation has often been defined as an assisted negotiation. I believe that a better way of analysing the mediation process is to look at the mediator as a catalyst, who supports the negotiation process at every stage.
There are myriad reasons why it is believed that a mediator is needed to assist in the negotiation process, among these being the fact that the negotiators might feel exploited if a third party is not present, and importantly because communication ties between the parties might have broken.
Additionally, the negotiators might not be aware of the position of the law and thus, the introduction of a third party who is not only neutral but also has knowledge of the law might be the shot in the arm that the negotiation process needs to be successful. All these could be merely some of the reasons why parties may choose to mediate instead of resorting to an ordinary process of negotiation.
Mediation has met with different rates of success in different countries. In the United Kingdom, The Centre for Effective Dispute Resolution reported that in 2002/2003, some 516 commercial cases were mediated (an overall 22% increase over 2001/2002) with a settlement rate of 78%, the major proportion of such cases settling on the day of the mediation, and with 95% of all cases conducted in one day. The enormous success of mediation in the UK has led the Lord Chancellor’s Department to announce that all government departments would seek to avoid litigation by using mediation and other neutral-assisted dispute resolution procedures. So important has mediation become in the UK, that in Hurst v Leeming Lightman J described the current position in England and Wales in the following terms :-
“Mediation is not in law compulsory, … (but) alternative dispute resolution is at the heart of today’s civil justice system, and any unjustified failure to give proper attention to the opportunities afforded by mediation, and in particular in any case where mediation affords a realistic prospect of resolution of dispute, there must be anticipated as a real possibility that adverse consequences may be attracted.”
Mediation has also become the principal method of dispute resolution in countries like Sri Lanka, where specialised Mediation Boards have been established as well as in countries in the far East, like China and Japan.
I. Analysing the Mediation Procedure through an examination of the various stages of the mediation process:
The mediation procedure can be divided into six steps, each of which represents a particular stage of the mediation process. These stages, for the sake of convenience, have been outlined below:-
a. Convening process and preliminary arrangements
b. Mediation introduction and laying down the ground rules for mediation
c. Statements by negotiators, followed by a restatement of the problem by the mediator
d. Setting the agenda for mediation
e. Facilitating the mediation, by generating options, if necessary
f. Reaching a negotiated settlement
To effectively analyse the mediation procedure, I shall be examining each stage of the mediation procedure in some detail. In each of the stages mentioned above, I have placed two or more stages in juxtaposition to aid analysis. This examination will not only provide an overview of the entire process, but will also highlight some of the measures which have to be taken by the mediator/parties, and some actions which cannot be performed by them.
a. Convening process and preliminary arguments:
The process of convening the mediation is often the most difficult and challenging part of the mediation procedure, because it may, and does often require the bringing together of parties who do not want to negotiate, or between whom relations are so strained that they may not want to negotiate.
There are different procedures for bringing parties together, and these differ widely across jurisdictions. In America, it is only the parties who must voluntarily agree to enter the mediation process. In India, the situation is different and greater external pressure can be placed to induce the parties to enter the mediation. In fact, in the case of court appointed mediation, the Court can order the parties to enter the mediation process under Section 89 of the Code of Civil Procedure.
On examination of the procedure laid down in the Delhi High Court Mediation Rules, the parties are ordinarily given the freedom to appoint a mediator of their choice. However, to assist mediation, the Courts in the National Capital Region are mandated to create a panel of mediators from among whom mediators may be chosen to assist the parties. Thus, the fact that the parties have not been able to reach consensus on whom to appoint as a mediator will not pose a hindrance to the progress of negotiations.
The difficulty in convening the mediation is often because the parties are unwilling to enter a negotiation, or because relations between them are very strained. If there is no third party to facilitate the coming together of the parties, they may be often unwilling to come to the negotiation table. If however, the convening of the mediation process is done by a third party mediator, then it certainly might be easier to secure the willingness of a reluctant party. This is especially so if the mediator is a person with significant social standing, like a judge of the High Court or the Supreme Court, or even a senior lawyer. Additionally, in the procedure mentioned under Section 89 earlier, it becomes compulsory for the negotiators to come together and enter the mediation process, in mediation centres specially established by the Court for the purpose.
Having said that, an unwilling party who is hauled into the mediation process might not be willing to discuss settlements as readily and might not co-operate with the mediator and the other party. But this risk is outweighed by the benefit in the cases of other unwilling parties, who because of court annexed mediation, will actually attempt the mediation remedy which they would not have otherwise.
b. Mediation introduction and laying down the ground rules for mediation:
This is a critical stage in the mediation process. The mediator in this stage has to explain the procedure which will be followed in the rest of the mediation. In other words, the mediator must in the stage explain how the mediation will be carried out.
The mediator must also inform the parties about things which might have the effect of reducing the possibility of success in the mediation. For example, the mediator must inform the parties about the fact that reaching a settlement is not necessary, and how participating in mediation is supposed to be voluntary.
As mentioned earlier, there is however in neither India nor America a standard form of rules which have to be followed. Indeed, if the parties can reach a consensus on the rules to be followed in the mediation, then those rules can be followed during the mediation. Even the Delhi High Court Mediation Rules state that parties may agree on the procedure to be followed by the parties and the mediator in the conduct of the mediation proceedings.
This is one of the principal advantages of mediation and other forms of Alternative Dispute Resolution, namely that there do not exist rigid and binding rules of procedure which may hamper and delay the process. Even the rules of procedure to be followed can, and often are, evolved by the parties through consensus between them. The other advantage of this is that if the parties are involved in the framing of the rules, it becomes easier to enforce them and this is particularly beneficial because a mediation does not have powers conferred upon Courts of law under the Contempt of Court Act.
c. Statements by negotiators, followed by a restatement of the problem by the Mediator:
In this stage, the mediator will elicit statements from the negotiators. This is a mandatory stage and it is here that the parties articulate their positions, so that the other side can understand exactly what they want.
This is particularly important if the parties, before the mediation, were not on cordial or even speaking terms. Additionally, understanding the positions of the parties on the other side will also help parties to begin to understand the interests of the parties which underlie the positions.
The mediator will have to follow this rule of procedure even if he knows the problem which exists between the parties, to remove incongruities which exist in the understanding of the facts by the parties and consequently to ensure that the parties understand the problem in the same sense.
Following the statements by the parties/negotiators, the mediator must restate the problem. This is to add to the process carried out earlier and to accommodate multiple perceptions of the problem. Often, the inability of the parties to reach a settlement is because they have different perspectives on the problem, even if they are clear on what the problem is. One party might feel therefore that he or his client was treated unfairly and therefore, even if he knows the events which have led to the problem, he may be reluctant to actively participate in the mediation. When the mediator restates the problem after hearing the various and often competing perspectives on the problem, he must attempt to accommodate the differing perspectives as far as possible in his restatement, as long it does not lead to contradictions. By harmonizing the differing perspectives on the problem, he will help to reduce the parties’ perceptions of the differences that exist between them.
Once this is done, the mediator must then attempt to collect as much additional information about the problem and the sequence of events that led to it. It will not only help the mediator in facilitating the negotiation between the parties, (which will be discussed shortly), it will also help in setting the agenda for the mediation.
d. Setting the agenda for mediation:
This stage involves the setting down of the sequence or order in which the negotiation is to proceed, and is an important duty cast on the mediator because it imparts clarity to the mediation which not only benefits the mediator in assisting the parties to reach a settlement, but also the parties because they have a standard according to which they can evaluate individually the progress of their negotiations. In setting an agenda, the mediator might place not only the dates and the venue for the negotiation sessions, but will additionally also place before the parties the issues which have to be discussed by them in sequence, so as to remove vagueness from the exercise.
e. Facilitating the negotiation, by generating options, if necessary: </em
In this stage, the mediator assists the parties in undertaking the negotiation effectively. It is here that the importance of neutrality and confidentiality on the part of the mediator and in the mediation process respectively, are showcased. Both these have been discussed in detail in the next part.
The generation of options must be viewed as distinct from the interference of the mediator in reaching the final settlement. The mediator ought not to interfere by compelling the parties to reach a final settlement, and the rules formulated by the Delhi High Court prohibit the mediator from compelling the parties to reach a settlement. However, the mediator may facilitate the reaching of a settlement by generating options, one (or a combination of a few or many) which the parties may adopt as the final settlement. An example of this, which readily comes to mind, is in the case of a dispute between an employer and an employee.
Here, the mediator may offer various options which will best satisfy, in his opinion, the interests which he believes underlie the positions take by both parties. If he for example comes to understand that the interest of the employer is in maintaining the status quo in the company’s hierarchy, and the employee wants to be promoted, he can offer them two options. One option could be that the employer will create an additional position at the higher level to accommodate the employee without disturbing the hierarchy, and the second option is to offer the employee a substantial raise but with the same position in exchange for the promotion. Both of these options will satisfy the employer and the employee, but left to themselves, they might not be able to, or willing to examine these options. Thus, the intervention of the mediator in generating options becomes an important part of the mediation procedure.
f. Reaching a negotiated settlement:
This stage of the mediation procedure is the final stage and involves two steps, first the reaching of a settlement, secondly the summing up of the settlement. Once these two stages have been completed successfully, the process of implementation of the settlement begins.
This is the practically the most important part of the mediation process and thus care and caution have to be exercised in this process by the mediator. Although in this stage as well, there is no fixed procedure which must be followed in all circumstances, there are certain factors to be kept in mind by the parties as well as the mediator. First, the mediator must, through the use of options discussed earlier, direct the parties towards reaching a settlement which he believes will best satisfy their interests. Only then will the mediator succeed in securing the commitment of the parties to the mediation and the settlement reached. Next, once the settlement is reached, the mediator has to summarise the settlement and put it down in writing. This procedural requirement is critical because an essential requirement to secure compliance is that the parties both understand and are in agreement on the exact content of their settlement.
Therefore, to secure this objective, the mediator must record a synopsis of the settlement remembering to note all the material particulars which the parties reached an agreement upon and not ignoring matters of detail which are related to their interests either. This is also important because once this is complete the mediated settlement has the force of a binding contract and can be enforced by a court of law.
After the settlement is reached, as mentioned earlier, it has the power of a binding contract between the parties and can be enforced by a court of law. The Rules framed by the Delhi High Court state that on receiving the settlement, if the Court is satisfied that the parties have reached a settlement, it must pass a decree in accordance with the same. This is a welcome addition to the strength of the mediation process, since it makes settlement immediately capable of being executed and also exposes the other party to the risk of civil contempt in the event that he does not show commitment to the implementation of the settlement.
II. Factors to be kept in mind by the mediator during the mediation process
We have seen the various stages which make up the mediation process. In this part, I shall be examining certain guiding principles which have to be kept in mind by the mediator and the parties during the mediation. These do not directly constitute the mediation procedure, but form the pillars on which the procedure stands. I have examined three broad principles, namely neutrality, confidentiality and ethics. Under each of these, I have included other principles which also assist and support an effective mediation process such as private meetings, counselling and extending assistance to parties with substantially lesser bargaining power in the negotiation.
One of the factors which sets a mediation apart, (or for that matter any mechanism of Alternative Dispute Resolution) except Lok Adalats in the Indian context, is the presence of confidentiality in the process.
As has been pointed out by respected authors in the field , the lawyers involved in the process of alternative dispute resolution (henceforth ADR) view the requirement of confidentiality very differently from their clients. To some clients, keeping the information behind closed doors might be very important for social, emotional or even economic reasons. On the other hand, lawyers would view the requirement of confidentiality essentially from the perspective of future litigation between the parties. In America, the Federal Rule of Evidence 408 prohibits the use of settlement discussions in courtroom proceedings, and the policy considerations for confidentiality in mediation are very similar to the underlying policy considerations for the Rule of Evidence. Similarly, in India, Rules 20 and 21 of the Delhi High Court mediation rules make it mandatory for the mediator to keep confidential any document if requested by one of the parties to do so, and also to ensure that the mediation proceedings are carried out in complete privacy.
A mediated agreement and the mediation process thus enjoys the benefit of confidentiality. The direct advantage of this is that it develops trust between the parties to the mediation process. If parties are aware that their discussion will be behind closed doors, then they will be naturally more willing to reveal information they believe sensitive. But more importantly for our purposes, it helps the mediator in developing trust between the parties, since the mediator can generate the confidence of the parties much more easily if he can assure them that anything they say in the mediation cannot be used against them, and also that the world outside will not come to know of information the parties might not want to reveal.
A good mediator, in the beginning of the process itself, will inform the parties about the guarantee of confidentiality. Additionally, he might also try to reassure the parties by telling them the exact ramifications of confidentiality in the process. The basic requirement of informing the parties is a fundamental duty of the mediator.
There has been much discussion about the granting of confidentiality, and it is relevant for us to discuss this here. Although it has been generally accepted that confidentiality is beneficial and necessary to a negotiation process, much doubt has also been expressed about the impact which this confidentiality and the consequent immunity granted to the mediator might have. The rules framed by some High Courts also expressly confer immunity on the Mediator in respect of anything bonafide done or omitted to be done by him during the mediation/conciliation proceedings for civil or criminal action. The rules also state that the mediator cannot be summoned by any party to the suit or proceeding to appear in a Court of law to testify in regard to information received by him or action taken by him in respect of drafts or records prepared by him or shown to him during the mediation proceedings. It has been argued that this level of immunity is excessive and might hinder the cause of justice when the mediator’s actions have impaired the rights of one of the parties to the mediation.
It must however be noted that the rules stated above only provide immunity in respect of actions performed bona fide by the mediator in the performance of his official duties in the mediation process. They do not prevent the parties from invoking the responsibility of the mediator in mala fide or corrupt dealings.
I think therefore that on the whole, it is important for there to be confidentiality in the mediation process, since the cost of potential abuse must not be allowed to outweigh the benefit of preventing disclosure of sensitive information. A practical issue is also the fact that the mediators (in the Indian context) are senior lawyers or retired judges, sometimes even Chief Justices of different High Courts or on occasion, the Chief Justice of India. The Delhi High Court mediation rules also require that a mediator, in order to serve on the mediation panel, must be either an experienced lawyer or a judge, or in any event, a distinguished professional or an expert in the field of mediation. It would be difficult to expect them to come as willingly to assist in the mediation process if there remained the danger that they would be required to appear in court on allegations of mala fide, or worse, corruption.
We have noticed that one of the primary objectives of ensuring confidentiality in the mediation process was to develop trust and confidence in the parties regarding the process and make them more willing to not only share information, but also to actively discuss options and reach a settlement. Similar factors necessitate neutrality in the mediation process. Infact, as some authors have noted, the mediator is actually called a third party neutral. It becomes necessary therefore, in light of the obvious importance attached to neutrality, to discuss exactly why it is so important. The reasons which will be advanced below are an elaboration upon and in addition to the reasons mentioned above.
The word neutrality is used interchangeably with impartiality, freedom from prejudice and freedom from conflict of interest. Authors and groups in the United States however, have distinguished between neutrality and impartiality. While neutrality implies removal of any possibility of a biased mediation process, impartiality implies actual involvement in the course of the mediation process to help both parties reach a favourable settlement. For example therefore, a neutral mediator, if he feels, or if any of the parties feel, will be biased towards one side, will excuse himself from the entire process. On the other hand, the display of impartiality means that the mediator will actively assist both parties in reaching an agreement, and not support any particular individual, which is the role of a lawyer in a court room.
I believe that this distinction is very flimsy and indeed, while discussing the necessary factors to be kept in mind by the mediator for a successful mediation, really does not support our endeavour. This is because even if there were a difference between the two, the two are so interconnected and interdependent that in practice, a mediator will have to keep both of these in mind to an equal degree, and simultaneously. If however, as has been understood by a few, impartiality is considered to be akin to actively ensuring fairness in the mediation process, there is an important distinction between the two which has to be kept in mind.
I shall for the purposes of the discussion be reading the requirement of neutrality and impartiality in juxtaposition and analysing the two together. This raises a very interesting and a very important question. Does a mediator have to ensure only fairness of the process, by either excusing himself on apprehension of bias or intervening to prevent any procedural unfairness or does his duty extend to even ensuring that the result of the mediation process is fair?
Kimberly Kovach argues that it is not for the mediator to intervene and make judgements for the parties and to that would be to require conduct which is outside the mediators role in the mediation process. She also argues that even if there is a case in which the mediator feels that he will not be able to produce a fair or unbiased result, he or she should not intervene in the mediation process. The mediation rules framed by some High Courts in the country also expressly state that the mediator shall only attempt to facilitate the voluntary resolution of the dispute, and that the mediator shall not and cannot impose any settlement on the parties. The Rules state that the only role of the mediator is to communicate the view of each party to the other, assist them in identifying issues, reducing misunderstandings, clarify priorities, explore areas of compromise and generate options in an attempt to solve the dispute.
However, it must be remembered that the role of a mediator is different in that he is supposed to guarantee an agreement which is not one which a court would refuse to enforce on grounds of fraud, duress, unconscionability or overreaching imbalance in bargaining leverage. Additionally, it is submitted that there might be instances when a mediator might have to intervene and declare suggestions to be unacceptable, though that might ordinarily seem to be outside the scope and powers of the mediator. This is in situations in which the proposed settlement is against the provisions of any law. An example which comes to mind readily in the Indian context is as regards the Minimum Wage Legislation enacted in India by different states. If the settlement which has been reached by the two parties violates the provisions of the statute, then even though the parties are agreeable to the solution, the mediator is bound to enter the mediation process and inform the parties about the statutory bar prohibition against such a settlement or agreement.
Further, I believe that the role of the mediator does include an obligation to infuse fairness into the mediation process, by, in some cases, actually supporting the weaker party to the mediation. I believe that though this goes against the opinion of authors like Kovach, it does not infringe the rules mentioned above. Specifically, the High Court rules only prevent a mediator from imposing a settlement on the parties and infact empower him to reduce misunderstandings promote the reaching of a settlement, which is possible only if there is some degree of parity, or in any event the perception by the parties of a certain degree of parity in the mediation process.
Further, it is submitted that this would be justified in light of the purpose to be served by the presence of a mediator as a third party to moderate the process. It may often happen that one of the parties might not have the same bargaining power, and indeed, its power may be significantly lower than that of the other party. If that is the case, it will be impossible for that party to develop trust and confidence in the process and will irreparably reduce that parties’ willingness to actively participate. It becomes necessary to level the playing field to not only to increase and facilitate the involvement of both parties, but also to increase commitment to a settlement, if it is reached.
The importance of this can be better understood if we examine the consequences if the playing field is not levelled. First, as mentioned earlier, one of the parties will have very little trust and confidence in the mediation process, if any. This will lead to reduced involvement and decreased willingness to make concessions, since he will view the process as exploitative. This in turn will reduce the possibility of reaching a settlement and if a settlement is reached, it will gravely impair the likelihood of the parties being committed to the results of the mediation. It is submitted that in light of the above, it is very important that a mediator intervene to level the playing field, if he perceives that the bargaining power of one of the parties is significantly lower, or if that party, for some reason, is weaker than the other.
An example of this might be in the case of a mediation between a worker and the management of the company, i.e. his employers. A single employee might, in the absence of a Union, or even in its presence, not have even a fraction of the bargaining power of the management. The workers livelihood may depend on the contract, but the dismissal of that individual might not affect the company at all. In this case, the worker might feel that the entire process is exploitative and even if he agrees to come for mediation, he might not at all be committed to the process and he will be unwilling to make concessions. Borrowing a term from negotiations, he might believe that the BATNA to his participation in the mediation, namely going to court to adjudicate his rights might be a much better option to mediating, since in a Court his legal rights will be considered as important as the rights of the company. If a party feels that the BATNA is much stronger than the mediation, it is not hard to imagine what will happen if he gets the slightest feeling that the process is not fair or impartial. Thus, in such cases, it is imperative that the mediator intervene and convince the individual that his rights will be secured through the mediation process.
Additionally, the fact that the mediator must not directly engage himself with an individual party cannot come in the way of counselling and allowing parties to give vent to the emotions. The reasons for this are essentially the reasons mentioned above. A party to the negotiation might have undergone emotional and psychological turmoil. Further, he might be unsure about the need or utility of the process. He might also have an irrational fear about the process, distinct from the differences in bargaining power. The mediator at this stage can and must enter the process by either counselling them, giving them additional information about the process to alleviate their fears, or by simply allowing the parties to vent their emotions.
Additionally, the mediator can also specially arrange private meetings with the parties, as long as the other party does not perceive the mediator to be biased. The mediator may use these special meetings to increase the trust that the parties have in the mediation process, and increase their willingness to participate. Private meetings can also be used as fora for the parties to vent their emotions.
3. ETHICS IN MEDIATION
An important consideration which the parties and the mediator have to keep in mind while entering the mediation process is that they must conform to accepted professional standards of conduct. Black’s law dictionary has defined the word “ethics” as of or relating to moral action, conduct, motive or characteristics conforming to professional standards of conduct. It is unclear where exactly to draw the line between other vital requirements like maintaining neutrality and confidentiality and other ethical norms which have to be kept in mind and followed by the mediator and the parties.
Some of the ethical standards which are universally believed to apply to the mediation process include the avoidance of fraud, impropriety and dishonesty. Not only must these basic ethical markers be scrupulously followed by the mediator, he must also ensure that the same are followed by the parties. For example, in a mediation where the mediator is called upon to answer the question as to the value of a building, the mediator may come to know in the course of the mediation that the prices as cited by one party have been doctored with the assistance of the contractor. It becomes the duty of the mediator to inform the other party of the fraud so that the settlement, if reached, does not reflect the result of improper and dishonest negotiations. There are also ethical considerations which have to be kept in mind by the mediator. For example, a mediator must not charge exorbitant fees and engage in advertising, and since he must not identify himself with the result but only with ensuring a fair, impartial and effective process, contingency fees have been prohibited in other countries where they may otherwise be charged by lawyers.
A question which has provoked the maximum debate on the ethical considerations involved in the mediation process is this- “Should the mediator must play the role of giving advice to parties to assist them individually in making the settlement fair and just or must he at all times play the role only of assisting the parties in arriving at a settlement by themselves? When is the intervention of a mediator to provide some assistance to one party ethical? Or must the principle of self-determination by the parties always govern the field? This question is similar to the earlier question asked during the discussion on neutrality on the part of the mediator.
It is believed by some that once a mediator intervenes, even if it is to merely give assistance to one party, his role changes and becomes similar to that of an advocate on the side of that party. Additionally, it is argued, that the trust and confidence in the mediation process, which depends to a large extent on the independence, impartiality and neutrality of the mediator might be affected if the mediator intervenes on the side of one of the parties. On the other hand, practical realities, especially in the Indian context cannot be ignored. It is submitted that this ethical consideration is adequately and appropriately answered in the earlier part, namely that when the mediator believes that one of the parties is in a weaker position and has significantly lesser bargaining power, he may and should intervene to assist one party and level the playing field to the extent possible. If appropriately carried out, it may actually promote the success of the mediation and not hinder it.
However, the mediator must at all times remember to separate people from the problem. The importance of the mediator intervening to level the playing field or at times offering assistance to one party must not be confused as meaning that the mediator must identify himself with the individuals involved in the mediation. It is clear that to do this would tremendously reduce the efficacy of the mediation process, and would derail it entirely if the other party felt the mediator was not neutral. The situation is different however if the mediator finds that the differences in the bargaining power are affecting the understanding of the problem itself by the parties. If the mediator finds that this happening, then as we mentioned earlier he must intervene to prevent the parties from ignoring their interests and instead rigidly focussing on their positions. In contradistinction to involving himself with the people and not with the problem, this will infact make the mediator engage more directly with the problem and reduce engagement with people and their positions.
III. Recalling everything that has been discussed
We have seen how the process involved in the mediation is greatly shaped by the role of the mediator, as well as the parties to the mediation. At every stage of the mediation process, we have seen how the role of the mediator is crucial in securing the success of the mediation. Thus, from the stage of convening the mediation itself, the mediator must act in a manner most conducive to building the trust and confidence of the parties in the mediation process.
This objective extends through every stage of the mediation process we outlined. For example, as we have seen, an effective restatement of the problem will help to resolve different competing perceptions of the problem and can go a long way towards preventing misunderstandings on that score. Further, if effectively done, it may also ensure greater commitment of the parties to the settlement reached as a result of the mediation process.
In addition to the various stages which we have examined, we have also seen how the the mediation procedure also depends to a great deal on the supporting principles, which have to be kept in mind by not only the mediator, but the parties as well. We have seen how the most essential among these, specifically the requirement of confidentiality, neutrality and ethics are as essential as building blocks of mediation success as any of the specific mediation stages. We have also seen how the objectives of mediation are supported if the mediator adopts a proactive role in counselling the parties, holding private meetings and supporting the weaker party if he feels that the difference in the bargaining power of the parties is hindering the reaching of a settlement.
On examination of the rules framed for mediation by the Delhi High Court, we have seen how it has incorporated some of the essential elements discussed above. We have also noted the differences in these specific rules in comparison to the principles and practices discussed. It is clear however that irrespective of the specific content of any code of rules, the success of mediation will depend on the honouring, in letter and spirit of the guiding principles at every stage of the mediation process by not only the mediator, but the parties as well.