Mediation

What is Mediation?

Mediation is a structured process whereby an independent person, known as a mediator, assists parties to identify issues in dispute, assess available options and seek to negotiate the resolution of relevant matters.

Mediation is commonly utilised in a range of different dispute contexts across a range of professional areas and industry types. It can be an effective tool to resolve matters as an alternative to a judge imposing a decision on the parties.

What is the Mediation process?

The mediation process can vary somewhat from case to case but will generally involve a process whereby two parties agree to meet privately with one another and a mediator at neutral venue at a prescribed time/s and date/s to discuss their matter. The Mediator will generally be briefed with relevant material in advance of the mediation to assist the parties to focus on the matter at hand, the issues in dispute, and each parties position.

Often parties to a mediation will be accompanied by their legal advisors during the course of the mediation, to provide advice and advocacy. This can be particularly important, especially when participants come to an agreement and are giving consideration to terms of settlement. Although the process of mediation can vary from matter to matter, most mediations follow the structured process as follows:

  1. The mediator commences the mediation process by gathering the parties into a single room, introducing themselves to the parties, explaining their role and making any preliminary comments or statements to the parties as they wish;
  2. he parties then are given the opportunity to each provide a brief opening statement to mediator, explaining who they are, the main issues in dispute, and their respective positions concerning those issues. The mediator may seek to clarify relevant matters as necessary with each party;
  3. Once this process has been completed, it is common for the parties to “break” from one another, that is for each of them to move to separate rooms, to allow the mediator an opportunity/s to speak with each party individually. Generally, the nature of these discussions will include relevant issues, strengths or weaknesses of cases, and be informed by a motive of seeking to encourage the parties toward resolution of relevant issues or to identify potential concessions available. Mediators will often seek to move back and forward between the parties when engaging in this process, to communicate offers or concessions, with a view to seeking to achieve acceptable terms of settlement/ agreement; and
  4. If possible, for the mediator to document the terms of settlement/ agreement agreed by the parties, along with any further steps required to be taken by the parties. 

How best to prepare for a Mediation?

It is advisable that you consult with a suitable legal advisor prior to participating in mediation. Your legal advisor will help you prepare for the mediation process. Part of this preparation is to ensure that relevant information and documentation has been collated, and to prepare written submissions to assist the mediator. This is of fundamental importance as the mediator must be properly appraised of relevant issues and ensure that your position and interests are adequately canvassed in relevant material and submissions that are put forward.

Your lawyer may also be able to assist you to consider a range of possible outcomes at mediation with a view to preparing you, and so that you are in a better position to respond to or make settlement offers during the mediation. You should also be advised as to what types of issues may be raised or discussed and can assist you to have peace of mind when approaching a mediation process.

It is important to prepare yourself mentally for the mediation. It is usually best practice to be commercially minded in relation to the process, rather than making decisions based upon emotion. Forge Legal has extensive experience in preparing for, attending, and advocating for clients in mediation processes. If you need assistance with an upcoming mediation, or need to arrange a mediation, or believe it may be a useful solution to an ongoing dispute, contact our friendly team, we can cater for your mediation needs.