At McLaughlin and Associates Lawyers, we pride ourselves in being able to assist our clients to explore alternative dispute resolution options rather than litigation.
A mediator is able to assist the parties to discuss and isolate issues surrounding a dispute. The aim of mediation is to reach a mutually acceptable solution that helps maintain, or at least does not further damage, the relationship of the people involved.
The benefits of a mediation done properly are:
- prevents escalation of the dispute;
- focuses on the specific interests of the parties;
- involves the parties participating directly;
- gives the parties ownership of the outcome;
- provides flexible outcomes that can be tailor made to individual circumstances;
- where possible, will preserve or at least not further damage the relationship of the parties;
- is generally more cost effective and results in a quicker outcome than litigation;
- it remains private.
How does the mediation process work?
A mediation can be arranged at any stage of your matter, whether you have been trying to negotiate between yourselves and you have reached a bit of an impasse or you have embarked on Court proceedings. Often when parties have commenced Court proceedings the Court will order the parties to attend a mediation and try to sort the matter out early on in the proceedings. This obviously has benefits for the parties in that it helps contain their costs and it also frees up the Court’s time and resources when parties are able to reach an agreement without the need to continue their Court proceedings.
Step 1 – Intake sessions
The mediation process will usually start with an intake session. These sessions are conducted separately and allow each of the parties to discuss with the mediator what they consider to be the issues and provide any information they believe is relevant to the dispute.
It also gives the mediator the chance to explain the process and what their role will be during the mediation.
Step 2 – Commencing the mediation
Once the mediation process commences the mediator will introduce themselves to the parties and their representatives and set the agenda for the day. They will again outline the process and clarify any issues or concerns the parties may have about the process and lay down some ground rules for how the mediation will proceed.
Each of the parties will be invited to provide a brief summary of the dispute from their point of view. It is important not to react to anything that is said but to simply listen and be respectful. It is the job of the mediator to then summarise each party’s position and identify any areas of agreement and the issues which need to be addressed.
Step 3 – Discussion and negotiation
The next step is to explore the issues that have been identified and to allow the parties to better understand each others point of view and to try to come up with some options or proposals to resolve those issues. Parties may continue to negotiate together in the same room or may be separated into different rooms where the mediator will move between the two.
It is often possible to reach an agreement at this early stage.
However, the discussions may continue on for a lot longer and it is the job of the mediator to guide the parties through and assist them to explore all possible options to resolve matters. The mediator may at times feel the need to reality test any proposals made or the position a party might have adopted. It is important to remember that the mediator is a neutral person and is simply there to help each of the parties explore the options and to ultimately reach an agreement, where possible. It also important to remember that anything said in a mediation cannot be used as evidence in later Court proceedings. Anything you say to the mediator will not be communicated to the other party unless you agree.
Step 4 – Concluding the mediation
As the mediation draws to a close the mediator will try to narrow down and negotiate on the issues to try to bring the parties to an agreement. If an agreement can be reached it will usually be documented in some way for the parties to sign.
If it has become apparent that agreement will not be reached, the mediator will advise the parties that he or she considers there is no chance of reaching a resolution and the mediation will be concluded.
In most cases a mediation is a worthwhile endeavour and a high percentage of matters are able to settle at mediation.
How to get the most out of your mediation
Our experienced family lawyers have participated in many mediations and have seen enough to know what works and what doesn’t.
Mediations can be difficult and exhausting. To help you get the most out of participating in a mediation, we have come up with our 3 top tips for mediation success.
- Obtain legal advice: Before you head into a mediation you need to be informed. You need to know what the family law process is and how it applies specifically to your situation. You also need to understand how the mediation process works and what would be your best and worst outcomes. Arming yourself with this knowledge will ensure you are able to make informed decisions during your mediation.
- Set realistic expectations: It is obviously a good idea to think about what you hope to achieve from the mediation before you proceed. Bearing in mind the legal advice you have received, what outcomes can you realistically hope to achieve and what can you live with. You need to be prepared to negotiate and compromise. If you set yourself unrealistic expectations and are not prepared to move from your position, chances are you are not going to resolve anything.
- Keep your emotions in check: One of the most important things to remember when participating in a mediation is to keep your emotions in check. Obviously, this is often easier said than done, but the reality is that when emotions start to escalate the process will become much more difficult and drawn out and can quite often derail any progress made earlier in the day. Participating in a mediation can be a very draining process and there is no harm in asking for a break if you need to.
Over the years we have helped many clients to resolve their family law matters through the mediation process. We know the best people to deal with and are able to recommend and engage a suitably qualified mediator for your matter.
Trust our team of expert family lawyers to help you get the most out of your mediation.