Some Common Questions and Answers

What is mediation?

Mediation is a process whereby a trained person assists two or more people (and often their lawyers) or organisations in dispute to negotiate a mutually satisfactory resolution to their dispute. It is a form of “assisted negotiation”.

What events precede mediation?

Typically (though every mediation process is varied), mediation involves the following steps:

• The Mediator is approached by someone with a request to assist.
• The Mediator telephones or writes to each person/organisation and asks if each is willing to consider mediation.
• If so, the Mediator sends to each person, information about costs, Mediator’s background and a contract relating to confidentiality and costs.
• A time and place (sometimes a “neutral” venue) for the meeting is arranged.

What happens in the actual join mediation session?

The Mediator welcomes each person and explains what will happen. It is important that each participant feels at ease and understand that they are not going to be put “on the spot” about some issue or position in front of other parties. Mediations have more chance of success if everyone is feeling as much as ease as is possible.

The Mediator often then meets with each individual/organisation alone before joint meeting proceeds. Anything that is discussed in the private meeting is confidential and will not be disclosed by the mediator to the other party unless the mediator is specifically permitted by you to do so. Knowing background information is helpful to the mediator.

The Mediator clarifies each party’s concerns and what issues they wish dealt with, and then tries to narrow down areas where the parties are in agreement or disagreement. This may take place in a joint session or individually in private conferencing with the parties and their advisors.

In a non-confronting way, each of the parties is encouraged to come up with possible ways to resolve each issue. An agreement is pieced together, like a jig-saw puzzle. Often the matter simply proceeds through negotiation, by offer and counter-offer.

Some or all of the above steps may take place in a joint session or separately with each party and their lawyer. The role of the mediator is to convey the offers and make suggestions on framing of the offers.

Seperate sessions

Sometimes it is appropriate to have the whole mediation conducted without the parties seeing each other, and this is often referred to as a “shuttle mediation” where positions are explored, developed and then carried by the mediator between the parties. Anything discussed in private sessions is confidential unless the party authorises the mediator to tell the other side what was discussed.

Can I talk about the mediation sessions with friends or professional advisors?

Yes, during the mediation you will have ample time to speak to your lawyer or adviser with the mediator present, if you wish. You can call a halt at any time to discuss where the matter is going or to express any concerns. The mediation is not meant to be a coercive process.

Are arrangements reached at the mediation binding at law?

A written draft agreement is often produced by the mediator and any lawyers at the end of the session. This draft agreement is “without prejudice” and cannot be used in a Court. Once signed however as evidencing the terms of the agreement reached, and depending on the nature of the mediation, the signed document might later be found by a Court to be a final and binding agreement, even if the intention is to have the signed agreement retyped and put into a required format for later filing in Court.

What if I feel uncomfortable with the mediation?

You can have a break at any time – no reason is needed. You will certainly find that dealing with some issues will be confronting. You can ask to speak to the Mediator alone. Or you can express your concern immediately and the Mediator will try to deal with it openly. Or, you can ask for the mediation session to be adjourned.

One of the Mediator’s tasks is to try to balance the negotiating strengths of each person and to minimise any feelings of intimidation.

What does it cost?

Mediators usually charge a per day or half day rate and an hourly rate for any preparation. If rooms are hired for the mediation those costs are also shared. The mediator’s costs are set out in the Mediation Agreement signed by all participants.