What is Mediation?
Mediation is the process of 2 parties negotiating with the assistance of an independent 3rd person. Mediation is used in nearly all commercial, civil and Family Law matters. It is an effective tool which allows the parties the ability to control the outcome of the dispute as opposed to having a stranger (ie. A judge) determining the outcome.
How Does Mediation Occur?
Mediations can have lawyers present or alternatively it can be without lawyers present.
There are many different models of mediation however listed below are some of the most common types:
- Face to face conference
- Shuttle conference
- Group Telephone conference
- Shuttle telephone conference
- Combination of any of the above
It is determining which model to adopt, the mediator will consider how emotional each party is, any imbalance in negotiating power or the level of hostility between the parties.
The most common format will normally commence with the mediator performing an intake with each party separately in order to assess the nature of the dispute. This intake may occur either on a day or two prior to the mediation or on the morning of the mediation.
When the mediation commences the mediator may bring both parties into the one room. Here the mediator will outline the rules of the mediation and may then ask both parties to outline what they consider are the issues involved and allow the other party the chance to respond.
At some point, the mediator may permit the parties to move into separate rooms and this is where the mediator will take offers back and forward between the parties. By doing this each party is able to discuss the matter with their respective lawyer and obtain legal advice concerning possible offers without fear of the other party knowing what is said.
What to take to a Mediation?
It is important to understand that mediations can take all day and even sometimes run into the night. Regardless of whether you have been told that the mediation is set for 3 hours or 8 hours, the likelihood is that the mediation may go until close to or after the close of business hours. Further, it is very common for mediations to not stop for lunch.
Given the above it is wise to take the following with you:
- Writing pad
- Calculator (if negotiating financial disputes)
- An Ipad or device to allow ability to access the internet
- A copy of all relevant documents that may affect the position of each party (for example, for a contract dispute have the contract, evidence of the offer and acceptance, any expert reports, evidence of legal costs paid to date etc)
How to prepare for a Mediation?
When preparing for a mediation you need to create a schedule of the items in dispute (eg. For Family law a list of the property owned). You need to also work out both your highest and lowest position ie. What you hope to obtain on your best day and what is financially the lowest you would be willing to accept in order to walk away and have the matter finalised.
It is important to try and be commercially minded in relation to any offer made or accepted. People who proceed because “it is the principle of the matter” usually end up increasing legal fees dramatically and still don’t necessarily bring the person peace of mind.
It is important to prepare yourself mentally for the mediation and prepare your documentation in case the other party wishes to see a document to confirm an issue. The biggest mistake you can make is to attend the mediation unprepared.