Our mediators will assist you to document any agreements that are reached during the Mediation process. Remember that our mediator’s role is to assist you find an agreement by helping you to feel comfortable and safe to hold a discussion with the other parties. In reaching an agreement our mediator will assist you if you require a third person to help with discussions. Sometimes the parties do need a support person or a lawyer to attend the mediation. We will provide the other party with the opportunity to agree where a support person is required.
In reaching agreements it is essential that what was agreed is properly documented. We will assist you to word the agreement and document the agreement. It is important that the agreement clearly articulates the resolutions that you agree to. We also need to make certain that there is no further disputes and that the agreement can be the basis of consent orders if you require a court to confirm the agreement that you reached with the other party.
The Mediation Process
The process involves the parties in the dispute attending a confidential pre-mediation interview. This is called Mediation Intake. The process is generally one that will take about 1 hour. The mediator will tell you about the mediation process, will gain understanding of each party’s issues, and confirm that parties have capacity to be able to communicate or negotiate during mediation. The mediator will also discuss meeting times or dates that work best for you and the other party with a view to booking in the time and date for the mediation.
Prior to the mediation being able to take place, the parties will be required to sign an ‘Agreement to Mediate’. The next step in the process is the formal joint mediation session. This entails a meeting where the parties to the dispute will meet with the mediator.
During the actual mediation the steps that you participate in include:
- Parties’ opening statements – this is where the parties will describe to each other very briefly the issues that they wish to discuss in the mediation
- The mediator will summarise the opening statements and set an agenda of agreed topics that will be discussed in mediation.
- A facilitated discussion of that the parties will engage in where the issues are discussed.
- Options and agreements negotiated between the parties.
- Brief individual private sessions where the mediator will meet in private with each party to discuss the mediation and possible areas to reach agreement.
- Documenting Agreements.
Rather than leave the decisions to a court, mediation can assist you to reach an agreement that you control. If you choose to go to court to resolve your dispute you do empower a third party to make the decision for you. Our mediators will not only assist you to try to reach an agreement but will also assist you by helping you to control the outcome.
If you can agree to the way to solve your dispute between yourselves you control the process instead of a court. Mediation is completely confidential and what is discussed in mediation cannot be used against the other party in court. Mediation may be unsuitable if you are not comfortable in communicating with the other party because there is a power imbalance between the parties. This means that one party cannot participate in the mediation process on an equal footing or negotiate effectively on equal terms. In such cases, our mediators will decide whether it is possible to mediate at all. is suitable in your situation. The mediator may choose to discontinue the mediation at any time that the mediator may feel that mediation is no longer appropriate.
Before mediation, you can get expert advice to prepare for the session, for example by getting legal advice on your rights and responsibilities and what alternatives are available if you do not negotiate an agreement.
If the parties to the dispute agree, it may be possible to use your lawyer or involve a support person or other professionals to assist the parties reach or document the agreements. If you choose o involve your lawyer in the mediation process, they may assist you document the agreement as well. Quite often, mediation works best as an informal process without your lawyer attending or, if you do choose to have your lawyer attend, they agree to just listen and not take an active role in the discussions.
However, if the matter is a complex, or commercial dispute that involves legal or contractual issues, then it may be best involve lawyers in the process. Despite their involvement, the mediation process will focus on a facilitation of communication between the parties in dispute and working towards agreement that can be documented. Agreements reached in mediation can be binding but it is up to the parties to decide how binding that the agreement should be. Mediation agreements are not generally legally binding, and are an agreement made in good faith for the purpose of resolving the dispute and reaching resolutions. The mediator will ask that the parties sign the agreement to confirm what was agreed.
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