What is mediation?
Mediation is a process in which an independent person assists two or more people in dispute to negotiate and to make mutually satisfactory decisions on the dispute. It is a form of “assisted negotiation”.
Preliminary matters in mediation
Typically, although every mediation process is different, mediation involves the following steps:
- The mediator is approached by someone with a request to assist.
- The initiating party may by themselves obtain the agreement of the other party to participate.
- Alternatively the mediator may telephone or email the other person involved and ask if they are willing to consider mediation
- The mediator sends to each person, information about the mediation, information on the mediator’s background and engagement information.
- The mediator may also at that time make a request for background information on the dispute from each party.
- Once both parties confirm they agree to mediation the mediator will makes contact with each individual to explain the process and to assess the suitability of the dispute for mediation. This may be through a telephone call but it may also involve lengthy personal contact preparing each side for the mediation.
- Once the mediator is sure that the issue and the parties are suitable for mediation a mediation agreement is sent to the parties for signing.
- Once the mediation agreement is signed an agreed time and a venue is arranged for the mediation meeting.
What happens in the joint mediation meeting?
The mediator welcomes each person and, even if he or she has met separately with or talked to the individual parties before the joint meeting, covers the key aspects of the mediation process, including confidentiality.
Each party is then invited to make an opening statement, this is an opportunity to express the concerns held without interruption from the other side. From this the common and individual issues and concerns can be identified. The mediator will take notes and feed back the statements in summary form.
The mediator clarifies the party’s concerns and translates them into issues for discussion. If appropriate, these issues are written up, and may be listed in order of priority. The mediator then tries to define the areas where the parties are in agreement or disagreement, and a structure to the discussions is developed.
Together the parties explore options for resolving the points of difference. Then an agreement is pieced together, like a jigsaw.
Can I talk about the mediation session with friends or professional advisors?
Advisors and supporters can be present at the mediation if all parties agree. The parties can also agree on what will be said publicly about the mediation. Except in very limited circumstances, neither the mediated outcomes, nor anything said at mediation, can be used in court.
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. However, you can also 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, to improve the negotiation process and to minimise intimidation.
Are agreements reached at the mediation binding at law?
Only if the parties wish them to be binding will the agreement be binding in law. The mediator may assist the parties to record the outcome in a heads of agreement document, which contains both matters which have been agreed and the issues, if any, still to be settled. The parties can redraft the agreement into a legally binding document after having advice from their lawyer and/or accountants.
What about afterwards?
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 contained a dispute resolution clause in which the parties commit themselves, in the event of a breach of the agreement, to come back to mediation before initiation of court proceedings.
Other agreements, that is those involving an on going working relationship, may provide for a follow-up meeting with the mediator, in say one to three months time.
What is child-focused mediation that Central Mediation practises?
Child Focused Mediation provides educative input on the needs of children in divorce, particularly the need for conflict management between parents. The mediator is pro-active in re-focusing parents gently but firmly back onto their children’s needs when they diverted to polarised or otherwise unhelpful positions.