People often hear “mediation is informal” and assume there are no rules. In practice, mediation procedure rules are what keep the process fair, efficient, and confidential, whether you are resolving a commercial dispute, a shareholder fall-out, a construction claim, or a cross-border contract issue.
This plain-English guide explains what those rules usually cover, what a typical mediation looks like, which documents matter, and where parties commonly trip up.
What are “mediation procedure rules” (really)?
“Mediation procedure rules” are the agreed ground rules for how a mediation will be run. They answer practical questions like:
Who appoints the mediator, and how are conflicts of interest handled?
What gets shared before the session (and what stays confidential)?
How will the meeting be structured (joint session, private meetings, remote attendance)?
Who must attend, and do they need authority to settle?
How is a settlement recorded, and when does it become binding?
Some rules are legal (for example, court directions or statutory confidentiality provisions). Others are contractual (what the parties agree in an “agreement to mediate” or what an administering institution requires).
Where mediation procedure rules come from
Mediation rules usually come from one or more of these sources:
1) A mediation agreement (contract)
Many mediations start with a short contract signed by the parties and the mediator. It typically covers confidentiality, fees, the mediator’s role, and how the process will run.
2) Court-connected mediation directions
When a dispute is already in court, the court may encourage or direct the parties toward ADR, and may set deadlines for mediation, exchange of documents, and reporting outcomes (often without requiring disclosure of negotiating details).
Because court practice varies by case type and forum, parties should treat “court-connected” mediation as a process with real procedural expectations, not an ad hoc conversation.
3) Institutional rules (if administered)
Some mediations are administered by an institution (local or international). In that case, you may be adopting a pre-set rulebook.
Well-known examples include the ICC Mediation Rules and the CEDR Model Mediation Procedure. If you are mediating an international commercial dispute, you may also see references to the UNCITRAL Model Law on International Commercial Mediation as a benchmark for modern mediation frameworks.
4) The mediator’s protocol
Even where there is no institution, many mediators use a standard protocol (for example, how they handle private caucuses, what they expect in a mediation brief, and how they address confidentiality within each caucus).
The core principles that show up in most mediation procedure rules
While details vary, most credible mediation frameworks share these fundamentals.
Voluntary decision-making (even if attendance is encouraged)
Parties may be required to attend mediation (especially in court-connected matters), but settlement remains a matter of consent. Procedure rules usually reinforce that the mediator does not impose an outcome.
Mediator neutrality and independence
Rules typically require the mediator to disclose conflicts, remain impartial, and avoid taking on an advisory or decision-making role.
Confidentiality (and “without prejudice” style protections)
A central promise of mediation is that it supports candid negotiation. Most mediation procedure rules:
Treat communications in mediation as confidential, subject to defined exceptions (for example, threats, criminality, or enforcement of a settlement).
Limit what can be used later in court or arbitration.
Because confidentiality can differ by jurisdiction and by the wording of the mediation agreement, it is worth getting the language right at the start.
Party self-determination and informed consent
Rules often address:
Who must attend (decision-makers, insurer representatives, directors, government officials).
Whether legal counsel may speak, and whether a party can have support persons.
The need for participants to understand the process and have capacity and authority to settle.
Procedural fairness
Even though mediation is flexible, procedure rules usually aim to ensure:
Each party has a fair chance to be heard.
Information-sharing is not manipulated to ambush the other side.
Private caucuses are handled ethically (for example, the mediator confirms what can be shared).
A typical mediation process (step-by-step)
The exact shape varies, but most commercial mediations follow a recognisable path.
Stage | What happens | What the “rules” usually cover |
Preparation and intake | Parties agree to mediate, choose mediator, set date and format | Appointment method, conflicts checks, fees, confidentiality terms |
Pre-mediation exchange | Each side shares key documents and a short summary (sometimes confidential briefs to the mediator) | Timelines, document limits, who receives what, privilege statements |
Opening session | Mediator explains process, parties outline issues and goals | Speaking order, tone, non-interruption, recording restrictions |
Issue framing and agenda | Parties identify the real decision points (money, time, scope, apology, future business terms) | How to handle new issues, who can propose agenda |
Private caucuses (if used) | Mediator meets parties separately to test options and risks | What stays confidential, what may be relayed, good-faith negotiation expectations |
Negotiation and option building | Offers, counteroffers, packaging solutions | Use of brackets, mediator proposals, managing deadlines |
Settlement documentation | Parties record terms (term sheet or full agreement) and sign | Authority to sign, binding effect, confidentiality clause, enforcement language |
Closure without settlement | Parties end session and decide next steps | What can be communicated to court/tribunal, cost consequences (if applicable), continued negotiations |
Key documents you should expect
Mediation feels smoother when the paperwork is clear and light. Common documents include:
Agreement to mediate
This is often the most important “procedure rules” document. It typically covers:
Confidentiality and permitted disclosures
Mediator’s role and limits (no legal advice, no decision)
Fees, cancellation terms, and logistics
Who attends and what authority they must have
How settlement documents will be prepared
Position statement or mediation brief
A strong brief is not a court pleading. It should explain:
What happened (in plain language)
What you need to resolve the dispute
The key documents the other side must understand
Your practical constraints (cash flow, timelines, regulator requirements, reputational sensitivities)
Some mediations use two briefs: a short shared statement and a confidential note to the mediator.
Document bundle
Commercial mediations work best with a focused bundle. Overloading the mediator with hundreds of pages often creates more heat than light.
Settlement agreement (or term sheet)
If you settle, aim to document it before anyone leaves the session. “Handshake” settlements can unravel if essential terms are missing or if authority is unclear.
What happens in the mediation room (and why the rules matter)
Many mediation rules are designed to manage three predictable pressure points.
1) Managing emotion and credibility
Even sophisticated commercial clients can feel personally attacked in a dispute. Clear procedure rules reduce performative advocacy and keep parties focused on outcomes.
2) Preventing “surprise” tactics
If one side arrives with new allegations, new numbers, or new documents, the mediation can stall. Pre-mediation exchange rules help prevent ambush and give both sides a fair chance to evaluate risk.
3) Keeping decision-makers engaged
A mediation can fail simply because the person with real authority is unavailable, distracted, or unwilling to make a decision on the day. Attendance and authority rules are practical, not formalities.
Common mediation procedure rules (explained plainly)
Below are rules you will see often, plus what they are trying to achieve.
Rule | Plain-English meaning | Why it exists |
Authority to settle | A decision-maker must attend or be immediately reachable | Avoids “I need to check with head office” delays |
Confidentiality | What is said in mediation stays in mediation (with exceptions) | Encourages candid negotiation |
Good-faith participation | You show up prepared and genuinely explore resolution | Prevents “box-ticking” mediation |
No recording | No audio or video recording without consent | Protects confidentiality and openness |
Mediator caucus protocol | Mediator will not share caucus info unless permitted | Builds trust in private sessions |
Timetables | Deadlines for briefs, bundles, and the session agenda | Stops drift and last-minute scrambling |
Costs and fees | How mediator fees are paid and what happens if a party cancels | Avoids fee disputes becoming a second dispute |
Settlement: when is it binding and enforceable?
A mediation can end with anything from “we are close” to a fully executed agreement. Procedure rules and local law determine what is enforceable, but these are widely applicable best practices:
Write it down. Capture essential terms (payment schedule, releases, confidentiality, non-disparagement if needed, who pays legal fees, tax wording where relevant).
Confirm authority and signatures. Make sure the right entities sign (not just individuals), especially where subsidiaries, insurers, or multiple contracting parties exist.
Be clear on conditions. If settlement depends on board approval, regulator notification, or third-party consent, say so explicitly.
Decide what happens to the existing proceedings. If there is ongoing litigation or arbitration, document whether the matter will be discontinued, stayed, or settled on consent terms.
For cross-border disputes, parties sometimes consider whether a mediated settlement can be recognised abroad. In some situations, international instruments may be relevant, such as the UN Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) (where applicable by country and subject matter).
Practical pitfalls (and how to avoid them)
Treating mediation like a mini-trial
If your mediation “opening” is a closing submission, you may win points and lose the deal. Procedure rules often encourage problem-solving language and discourage personal attacks.
Coming without a realistic risk analysis
Mediation is a negotiation informed by risk. If you have not assessed potential outcomes in litigation or arbitration (time, costs, enforcement, reputational impact), you cannot negotiate confidently.
Ignoring non-monetary terms
Many commercial settlements turn on terms beyond the number: revised delivery timelines, IP licensing scope, data-handling commitments, future supply arrangements, or a structured exit.
Overlooking confidentiality and regulatory obligations
Confidentiality clauses must sometimes co-exist with legal duties (for example, disclosures to auditors, regulators, insurers, or listed-company obligations). The procedure rules should not force a party into breach of another duty.
A simple checklist for drafting (or reviewing) your mediation procedure rules
If you are about to mediate, these questions will improve the odds of a clean process:
Who is the mediator, and have conflicts been checked?
What rules govern (court directions, institutional rules, or a custom agreement)?
What is confidential, and what exceptions apply?
What is the timeline for briefs and document exchange?
Who must attend, and what authority is required?
Will there be joint sessions, caucuses, or both?
How will settlement be documented and signed?
If remote attendance is allowed, how will identity, privacy, and document-sharing be handled?
Frequently Asked Questions
Are mediation procedure rules the same as court rules? No. Court rules govern litigation. Mediation procedure rules govern the negotiation process, though a court may set mediation deadlines or require attendance.
Is mediation confidential in every case? Confidentiality is common, but it depends on the mediation agreement, any applicable statute, and any court directions. Always confirm the scope and the exceptions in writing.
Do I need a lawyer at mediation? Not always, but legal advice is often valuable in commercial matters to evaluate risk, protect privilege, and ensure any settlement terms are enforceable and complete.
What if the other side comes without authority to settle? Good mediation procedure rules address this upfront by requiring decision-makers to attend (or be immediately reachable) and by confirming authority at the start.
How long does mediation take? Many mediations are scheduled for a half day or full day, but complex multi-party or document-heavy disputes can require additional sessions and structured pre-mediation exchanges.
Need help preparing for mediation in Jamaica?
Mediation works best when the procedure rules fit the dispute, the parties are properly prepared, and the settlement terms are drafted with enforcement in mind. Henlin Gibson Henlin advises clients across a range of matters, including commercial disputes, compliance and risk issues, data privacy, intellectual property, and shipping-related disputes.
If you are considering mediation or have been asked to mediate as part of an ongoing claim, you can contact Henlin Gibson Henlin via henlin.pro to discuss the appropriate strategy and documentation for your situation.