So you want to try mediation, now what?
You’ve been dealing with a conflict in your life; you’ve tried everything you can think of to resolve it without success. You’ve decided you need the help of a mediator to bring all the parties to the dispute together to calmly and constructively discuss the problem. If only there were a handy guide to mediation. You’ve Googled “mediation” and learned that:
“Mediation is a structured dispute resolution process, which aids and supports parties to identify issues, develop options, consider alternatives and outcomes, and make decisions about future actions and behaviours. The Australian National Practice Standards describes the purpose of mediation is to maximise the participants’ decision making.”
But what is it actually? Who attends? Where and when does mediation happen? How can mediation help?
Presenting A Handy Mediation Guide
Mediation is a way of talking about, dissecting and resolving disputes in a structured setting.
It is run by an independent mediator, like me, who makes sure that everyone is heard, that the issues are fully explored, and the parties have ample opportunity to contribute. Our role is to keep things on track, create a safe space in which to have difficult conversations, and capture what is being said.
How can mediation help me?
Mediation helps you create your own solutions to disputes and conflicts. It gives you the opportunity to explain how the issue impacts on you, and say how you would like things to change in the future. The other people involved in the dispute get to do the same thing, and together you will explore how to reshape your futures.
Because mediation is collaborative, any agreements reached are by consent. Negotiated solutions tend to be more durable than court imposed solutions, because they are made to suit your needs; they can also be more flexible than court imposed solutions – with mediation you can agree to things that are outside the courts’ scope, and tailor solutions to meet your individual circumstances.
Even if you cannot resolve the dispute entirely through mediation, you can often narrow the points in dispute, which saves you time and money at the eventual court trial; instead of wasting resources proving each element of the argument, you can tell the judge what is agreed and what is in dispute.
Who will be at mediation?
Mediation is run by an independent, unbiased mediator (me) who guides and supports you through the process; they do not give advice or make decisions about the dispute. The mediator manages the process, not the outcome. They facilitate communication between the disputing parties, and assist you to evaluate options.
In addition to your mediator, the person or people authorised to enter into a binding agreement to end the dispute must attend mediation. This may be the owner of a property, the CEO of a company, the head of a particular department, the executor and/or beneficiary of an estate, or the owner of an animal. If you are discussing a family dispute, you may want the whole family to attend.
Mediation is built on consent. If you wish to bring a support person – including legal representation – in to the mediation room, you can only do so with the consent of all other participants. If that consent is not forthcoming, then your support team must wait for you outside the mediation room in another part of the venue. Where ever possible break out rooms are provided for each party to the mediation, and your supporters may make use of that space if available.
What about confidentiality?
Each and every person in the mediation room is bound by confidentiality and will be required to sign a confidentiality agreement before they can attend.
What can I expect at mediation?
The dispute resolution process is adjusted to suit the needs of each unique dispute; however, there are some essential steps taken in most mediation.
Generally the day begins with everyone sitting together at a table. Each person present is introduced, and each party to the dispute makes a short opening statement outlining why they are at mediation. These opening statements help to identify the issues in dispute and the order in which they will be addressed. Often there are matters that can be agreed upon during this opening discussion, such as the value of items in dispute, or who is responsible for certain tasks and activities. The mediator will make a note of these points, and help you to make an agenda for the ongoing discussion. By consent, you, the other party/ies and the mediator decide how the mediation will proceed.
Ideally this joint session will continue with a discussion of each issue in turn. Each person will have the chance to express their view and experiences, and to respond to the other’s views and experiences. The mediator will help keep the conversation moving in a constructive direction, adjusting and adding to the agenda is required, and ensuring that all issues are thoroughly aired and explored.
Once all of the issues have been discussed in joint session, the mediator will often meet with each party in private. The private sessions give you the opportunity to reflect on the mediation so far; to think about options or proposals for resolving the dispute; to think about what may happen if the dispute is not resolved; to share any confidential information with the mediator; and to prepare for negotiating with the other parties.
After meeting with each of you in private, the mediator will bring you back together to discuss options to resolve the dispute. This is your opportunity to put proposals to the other people involved, hear their proposals and work together to find a middle ground. If you do reach a workable solution, the agreement will be written up and singed by each of you on the day. If you are unable to resolve the dispute, the mediator will help you to agree on how the matter will proceed, whether that means obtaining more information or an expert’s opinion on the issues, proceeding to court, or some other alternative.
Where is mediation held?
Mediation can happen just about anywhere. Courts and Tribunals (such as VCAT) conduct mediation inside hearing rooms; Native Title mediation may happen in the open on under a marquee; and I have myself conducted mini-mediation in a noisy pub!
Ideally, mediation will be conducted in a quiet, safe place, with a table large enough to seat everyone, and a series of separate ‘break out’ rooms available for private sessions between the mediator and each party, or for a party to take a break, gather their thoughts and prepare to resume a joint session.
Here in Melbourne we are lucky enough to have several excellent venues available for hire. The Courts also make rooms available for little or no cost, although demand is high for those. Most mediators prefer a neutral space in which all parties feel safe and secure; however, sometimes one party’s lawyer will make their office boardroom available to save on the cost of the mediation process.
When to mediate?
Depending on the nature of the dispute, mediation may take half or a whole day, or may take several sessions spread over many days. As with all aspects of mediation, the format of your mediation is decided by consent.
Unlike Court hearings, mediation can be arranged to suit your schedule (within reason!). If everyone involved agrees, the mediation can start or finish outside of business hours or be conducted on the weekend; family commitments such as the school run can be accommodated; if a party has an incapacity or illness that means they are more cognisant at a particular time of day, then mediation can be set for those optimum hours.
Mediation can be used early on, as soon as a conflict arises; after correspondence has been exchanged and before court proceedings have been issued; or after court proceedings have been issued, any time up until the court delivers its decision.
Over to you
Do you have any questions about the mediation process? Leave your question in the comments below.
Until next time,