At its most basic level, a mediation is a negotiation between disputing parties facilitated by an expert mediator, who assists the parties to resolve their dispute.
Sounds simple, right? So why even involve a mediator in the first place?
Humans are born negotiators. Throughout our lives we navigate countless disputes from childhood spats with siblings, to teenage rebellion against our parents, to romantic relationships, and workplace disagreements.
Most of the time, our natural instincts enable us to navigate these situations. But sometimes, when emotions get in the way, or the stakes are particularly high, or we reach a stalemate, independent help can be useful to resolve the dispute and move forward.
In this situation it’s worth engaging a mediator to assist both parties to find a satisfactory negotiated outcome, and potentially avoid costly and time-consuming court proceedings.
What is the role of the mediator in this process?
The mediator is an independent neutral person who is not involved in the dispute, and has no interest in the outcome. Importantly the mediator does not operate as a judge or adviser and does not impose solutions on the parties.
It is important to note that the mediator does not act or talk on behalf of either party, but rather provides tips on preparing for the negotiation, manages how the parties interact and communicate during the negotiation, acts as a sounding board for each party, and assists the parties to formulate a settlement agreement where possible.
By being independent, the mediator is able to assist all parties to unpack issues and potential outcomes in a practical, constructive, and sometimes creative fashion.
What is the role of the parties to the mediation?
For a mediation to have the best chance of success, each party should approach the mediation in good faith and with a genuine desire to find solutions that work for all parties. They should also go into the mediation well prepared, so that they can readily engage in meaningful discussions with a clear understanding of the facts, issues to be resolved, and potential outcomes.
What are the steps to complete prior to the mediation?
Before the mediation, the parties and the mediator will sign a mediation agreement which sets out the rules of engagement, including the role of the mediator and both parties, what can be disclosed about the negotiation by who and when, and what happens if a settlement is reached.
A number of days before the mediation the mediator will meet each party individually at a pre-mediation intake session. This meeting allows each party and the mediator to get to know each other and understand more about how the process will play out.
The mediator will explain the mediation process, ask each party for some information about the dispute, provide tips on preparation for mediation, answer any questions, and address any issues that will impact the effectiveness of the mediation.
What happens at mediation?
A mediation can take place in-person or via teleconference. If in-person, it’s important that there are two or three rooms available, including the mediation room where all parties and the mediator have joint discussions, as well as individual breakout rooms for each party to have private discussions with the mediator, their advisers and support people.
On the day, whether the mediation is taking place in-person or remotely, each party will begin the day in their own break-out room. The mediator will attend on each party to answer any last-minute questions before proceeding with the formalities.
The mediator will bring the parties together in the mediation space where they’ll provide an overview of the mediation process, including setting out some ground rules that need to be respected by all involved.
The mediator then gives each party the opportunity to give an opening statement, before working with the parties to set an agenda of the issues to be negotiated and the priority order of the issues. The mediation will then proceed in a flexible manner depending on the parties and issues raised.
At some stage during the process, the mediator will request that the parties separate and will then work with them individually to discuss controversial issues that may have been raised, potential resolutions, and stumbling blocks.
If the parties reach a settlement agreement, they will enter into Deed of Release or Settlement Agreement which sets out what has been agreed during the mediation. It is always advisable that parties get legal advice regarding the agreement before signing it.
If the parties cannot reach a settlement agreement, the mediator can still assist the parties to set out a process for the resolution of unresolved issues. For example, if the parties cannot agree the value of an asset, the mediator can guide the parties through the process of appointing an independent expert to provide a valuation and agree up front how they will deal with that expert’s valuation.
Alternatively, if the parties believe that the matter needs to proceed through the courts, the mediator can guide the parties to agree the specific issues to be determined by the Court and thereby ensure that no unnecessary legal costs are incurred litigating uncontroversial or extraneous issues.
