How Should You Prepare for Mediation?Nick Richards FDRP LL.B MBA GDLP DMgmt MQLS
Parties that come to mediation well-prepared are likely to be able to communicate and negotiate their concerns leading to a well-considered outcome.
The Mediation Process
It is important that you understand the process of mediation. Your mediator can assist you in the process however these are the common steps taken by professional mediators:
Formal consultation was undertaken with each party individually prior to the mediation conference.
The mediator works with each party individually to ensure they communicate their concerns effectively and trials some possible counter-responses by the other party.
The mediation conference is conducted as follows:
- The mediator opens the conference with an opening statement;
- Party A communicates their opening statement to Party B;
- The mediator summaries Party A’s concerns to Party B;
- Party B communicates their opening statement to Party A;
- The mediator summaries Party B’s concerns to Party A;
- The mediator confirms with both parties whether their concerns have been raised;
- The mediator prepares an agenda of topics based on each parties’ concerns;
- The mediator asks each party to choose in order of importance of each point;
- Each party communicates their concerns with each other on each point;
- The mediator assists the parties ensuring they are communicating effectively towards resolution;
- The mediator assists the parties in creating options of resolution;
- The mediator assists the parties with considering some challenges that the options may impose;
- The mediator assists the parties with developing agreements that are sustainable’
- The mediator drafts the written agreement detailing agreement met between the parties.
- Each party signs the agreement.
Issues in Dispute
When preparing for the mediation, it is important that you can focus on the key issues. This is where you should document what issues are important to you and why, these should be written in the order of importance to you. Have a think about some of the concerns the other party may raise, and whether these are the same as yours. It is helpful to consider what are some of the counter responses the other party may raise and to consider how you would carefully respond to these.
Understand what outcome you seek
You need to be clear on what outcome you seek from the mediation. Some parties may seek to obtain:
- an apology.
- financial settlement.
- preserve relationships.
- end the dispute so you can move on .
- for the greater good.
Have a think as to whether the other party wants the same things as you or are they seeking something entirely different? This is an opportunity to plan your response.
Be informed of your legal rights
Most parties entering the mediation process would have had legal advice, however some may have not. Should your matter involve legal rights and responsibilities, you may wish to seek legal advice from an Australian Legal Practitioner to understand how the court may deal with your dispute should negotiations fail at mediation, this could also include the time and money spent.
Consider some options
When you have narrowed down the issues in dispute, you need to start thinking about options for each one.
Options need to be realistic and you should have a think as to what the other party may propose, so your options do not clash. It is also important to consider if you do proceed to court whether what you are seeking will be ordered by the court if you are successful, things such as apologies may be possible but unlikely in a court setting.
Independent people may be good to have a chat to about your issues in dispute and your proposed options as they may be able to provide you feedback as to whether they are reasonable taking the circumstances into consideration.
It is normal to feel sad, anxious and overwhelmed when in the midst of a dispute, however you need to plan for how you will deal with these emotions, so they do not impact your ability to communicate and negotiate.
During the mediation conference, you may:
- request a short recess;
- request a support person;
- explain your feelings to the other party.
In some mediations, parties may request that a support person be present.
- generally do not talk for you.
- may be able to talk for you if leave of the mediator is given.
- may be a family member or lawyer.
You will always need to discuss this with your mediator, as they need to consider the dispute and discuss this with the other party.
Documents and information
It is helpful to obtain all information to provide to the other party to support your case. It is also important that you review your own documents to assist you to understand where there may be shortcomings in your case.
However, disclosing evidence to the other party may be problematic, even though the mediation is confidential, there is nothing to stop them from using this evidence in court or obtain it through other means. Should you hold concerns, best to speak to a legal practitioner regarding evidence and documents used in mediation.
NOTICE: The above is not legal advice and it is recommended that you obtain tailored legal advice related to your own personal circumstances from an Australian legal practitioner.