Mediation - some common questions and answers
WHAT IS SUSAN’S BACKGROUND?
Susan has been a solicitor for more than 35 years and has operated her own practice since 2009.
Susan is a NSW Law Society Accredited Specialist Family Law and a nationally Accredited Mediator.
As a Mediator, Susan’s focus is on providing clients a secure space to enable clients to negotiate and make important decisions for themselves.
WHAT IS MEDIATION?
Mediation is a confidential process whereby a trained Mediator assists two or more people (and often their Lawyers) who are in dispute, to negotiate a mutually satisfactory resolution to their dispute.
WHAT EVENTS PRECEDE MEDIATION?
Typically (though every mediation process is varied), mediation involves the following steps:
- The Mediator is approached by a party or their lawyer with a request to assist;
- The Mediator checks that both parties and lawyers agree to her appointment;
- If there is agreement, the Mediator sends each person information about costs, Mediator’s background and an Agreement relating to confidentiality and costs; and
- A time and place (often a “neutral” venue) for the meeting is arranged;
- Separate intake sessions are arranged with each party to enable the mediator to get to know each party and ascertain what they seek to achieve out of the mediation.
WHAT CAN I EXPECT IN THE INTAKE SESSION?
It is important in this private session for the participants to be open with the mediator. The Mediator understands that parties often come to mediation impacted by certain emotions such as grief, fear or anger.
Discussions in the private meeting are confidential and will not be disclosed by the mediator to the other party unless the mediator is specifically permitted to do so.
The Mediator clarifies each party’s concerns and what issues they wish dealt with, and then tries to narrow down areas where the parties are in agreement or disagreement.
WHAT HAPPENS AT MEDIATION?
The role of the Mediator is to control the process, have the lawyers feeling comfortable with each other, and to convey offers and make suggestions on framing of the offers.
The Mediator will seek to have each party through their lawyers, to make concessions knowing that the other party will do the same. In a non-confronting way, each of the parties is encouraged to come up with possible ways to resolve each issue. An agreement is pieced together, like a puzzle. The mediation is not a coercive process. Parties to a mediation are in control of the outcome.
ARE ARRANGEMENTS REACHED AT THE MEIDATION BINDING AT LAW?
If agreement is reached the parties will be expected to sign either a Heads of Agreement document or in the case of pending Court matters, final consent orders or other documents that make the mediated agreement binding.
In some cases that cannot not occur at the mediation due to the need to take further steps or sign further documents to make the mediated “agreement” binding.
WHAT IF I FEEL UNCOMFORTABLE WITH THE MEDIATION PROCESS?
You can have a break at any time – no reason is needed. You may find that dealing with some issues is confronting. You can ask to speak to the Mediator alone; you can express your concern immediately and the Mediator will try to deal with it openly; or you may 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 and to minimise any feelings of intimidation.
Try not to come with preconceived ideas as to the outcome you want to achieve. Be prepared to be flexible and to listen to the other party’s point of view.
You may be frustrated and feel negative about achieving a positive outcome. Mediation on average settles about 4 out of 5 matters. Try to be positive and patient.
Try not to rush decisions – the mediation will be conducted in a structured way so there will be plenty of time to think through and discuss with your lawyer and the mediator the important decisions to be made. Tell the mediator about how you feel – it will help her gain a better understanding of your needs and interests.