Mediation
Mediation is a process in which a qualified independent person assists two or more people (or organisations) in dispute to negotiate, and to make mutually satisfactory decisions on their issue. It is a form of ‘assisted negotiations’.
Typical events leading up to mediation
Typically (though every mediation process is different), mediation involves the following steps:
- The parties agree on their preferred mediator.
- The mediator is approached by someone with a request to assist.
- The mediator sends to each person some information about mediation, the mediator’s background, a mediation and fee agreement and, if necessary, a request for background information on the dispute.
- A time and place, usually at a neutral venue, is arranged for the mediation meeting.
What happens in the meeting
The mediator welcomes each person and explains the mediation process. He or she asks each person to talk in turn (without interruption from the other) about their concerns.
The mediator clarifies the parties’ concerns and translates them into issues for discussions. The issues are written up and listed in order of priority. The mediator then tries to define the areas where the parties are in agreement or disagreement, and provide a structure to the discussions.
Each party is asked to explain his or her position to the other on each issue, and together the parties explore options for resolving the points of difference. Thereby an agreement is arrived at that suits both parties.
Can I talk about the mediation session with friends or professional advisers?
Advisers and supporters can be present at the mediation. The parties can agree on what will be said publicly about the mediation. Neither the mediation decisions, nor anything said at the mediation, can be used in court.
Are the agreements reached at the mediation binding at law?
Agreements reached at mediation are only binding if the parties wish them to be binding. The mediator will assist the parties to record the outcome in a Heads of Agreement Document, which contains both matters that have been agreed and the issues, if any, which are still to be settled.
The parties can redraft the agreement into a legally binding document after receiving advice from their lawyers or accountants.
What if I feel uncomfortable with mediation?
You can ask to speak to the mediator alone. It is a normal part of the mediation process for the mediator to meet separately with each party on a confidential basis. 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.
Some of the mediator’s tasks are to try to balance the negotiating strengths of each person, to improve the negotiation process, and to minimise intimidation.
What does it cost?
Mediators usually charge at an agreed hourly/daily rate for preparation, the actual meeting time, and other expenses, if any, such as room hire and/or travel. While it is usual that mediations are completed after 7 to 9 hours of work, this depends on the nature of the issues and the complexity of the issues. Usually the parties to the mediation will share the mediator’s charges unless they have a prior agreement to another arrangement and confirmed this with the mediator in the Mediation and Fee Agreement Consent Form (signed before the mediation commences).
Please also see out Mediation Fees page.
What about afterwards?
Agreements reached will be written up in Heads of Agreement and the parties can then take their own independent advice as to whether they will legally formalise the agreement. One aim of mediation is to model a method of working through disputes so that the parties can solve their own disputes in the future. Mediated agreements often contain a dispute resolution clause whereby the parties commit themselves, in the event of a breach of the agreement, to come back to mediation before initiation of court proceedings.
What information should I provide at mediation?
While this is different for every mediation, to begin with the mediator will need some idea of the issues in dispute that need to be resolved at mediation. The Mediator will then outline for each party the specific information they will need to gather and provide at mediation in order to help resolve the particular issues under discussion. This information will need to be produced to the mediator prior to the mediation.
How can I prepare well for mediation?
If you decide to attend Mediation, please download our How Should I Prepare for Mediation document.
