Mediation is a flexible and alternative dispute resolution process where the parties seek to resolve disputes, with the help of a mediator. The mediator's role, as a neutral third party, is to provide a safe platform for mediation to take place and to guide the parties towards a mutually-agreeable settlement. The mediator will carry messages—offers, counter offers, questions, demands, and proposals to the parties.
The mediator will also encourage both sides to consider options and alternatives to resolve the matter. This environment is designed to encourage parties to raise their concerns and choose to make decisions or not. In doing this, the mediator is assisting the parties to identify and narrow down the issues in dispute, clearly understand each other's position and move closer to resolution. The parties therefore can exercise control over the outcome of the mediation process. This differs from the process of going to court, for example, where a judge makes the final decisions and both parties must then follow this decision, whether it is suitable for them or not.
Here is a snapshot of the stages involved during the mediation process:
Opening Statement
Typically, a mediation will commence with a joint session involving all parties and the mediator present. This joint session is used to set the ground rules and an agenda. The mediator will explain how the mediation will take place and will inform the parties that legal advice cannot be offered, that one particular party cannot be sided with nor can any decision-making be influenced by the mediator. The opening statement during the introductory remarks will set out the ground rules for the mediation. These ground rules are what help the mediation move along smoothly.
Statement by the Parties
After the opening statement, the mediator will give each side the opportunity to present their version of events in the lead up to the dispute. If the parties are represented by lawyers, it is the lawyer who will make the initial statement. The rationale behind the statement of the problem is to provide the opportunity for the parties to fully share their point of view and generate a range of options for discussion.
Information Gathering
At this juncture, the parties will usually be separated into different rooms. The mediator will speak with one party at a time by shuttling back and forth throughout the course of the mediation. The mediator will ask pose open-ended questions to the parties to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties and will summarise often. This process enables the mediator to build rapport between the parties, especially when a facilitative style is engaged.
Clarifying Interests and Problem Identification
The mediator will attempt to find mutually acceptable outcomes and help the parties make arrangements for the future. The mediator will attempt to determine which issues are going to be able to be resolved or those that will reach agreement first.
By clarifying the interests and areas of disagreement, the parties can brainstorm a number of different options that extend past what they were initially considering. Therefore, mediation can open up more creative options for resolution, with the aim of reaching an agreement that both parties can live with.
Reaching an Agreement
Once the parties are committed to achieving a resolution, the mediator will explore potential solutions. This can lead to a final agreement, which diffuses the conflict and provides a new basis for future relations.
How can Sharrock Pitman Legal help?
If you require help with attending a mediation or you require a mediator to appear on your behalf, we have legal practitioners who specialise in and can assist in alternative dispute resolution and mediation appearances at Sharrock Pitman Legal. Please contact us on 1300 205 506 or by email litigation@sharrockpitman.com.au if you require further assistance.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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Mitchell is the Managing Principal of our law practice.
He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.
