The Mediation Procedure
What happens at a Mediation?
Mediation was introduced into the conduct of Australian legal proceedings over 30 years ago. It was once dubbed an ‘ADR’ or Alternative Dispute Resolution procedure as it was considered to be an alternative pathway to litigating in court. Mediation is now regarded an integral part of the process of resolution of disputes referred to law – because it works.
Mediation like processes are now used in every court (Federal and State) and administrative tribunal in Australia. A typical definition of mediation is: “A process in which the parties to a dispute, with the assistance of the mediator, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement.”
If used appropriately, ADR processes like mediation can lead to cheaper, quicker, less stressful and more flexible resolutions, and allow the parties greater control over the process.
- Mediation (in Australia) is a legally privileged process because it is treated by the Courts as a mechanism that allows parties to resolve their disputes privately.
- After appointment, the mediator will arrange for private and confidential meetings with each of the parties. The purpose of these meetings is to allow the mediator to understand how the parties regard the dispute, what lies behind their stated positions.
- The mediator assists the parties to reach their own agreement by:
- providing an opportunity for each party to have their say in a non-threatening atmosphere;
- respecting each party’s individual view of the “truth”;
- helping disputing parties understand how each side feels about the problem;
- identifying and exploring all issues, including those which may not normally be revealed or dealt with in more formalised tribunals;
- focusing on the party’s future needs rather than past right sand wrongs.
Outline of the Mediation Process
At its simplest, the mediation can be seen as a 6-step process, involving:
1) Introductory Remarks
The mediator makes an opening statement that outlines the mediator’s role as a neutral facilitator of the party’s discussions and identifies any “ground rules” to enable the mediation to move along smoothly. Usually the only matter worth mentioning is that parties should not interrupt each other as the mediator will give each party the opportunity to fully share their side of the story.
2) Statement of the Problem by the Parties
After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Usually the person who requested the mediation will go first as they can explain what has caused them to want to request assistance with the negotiation. The opening statement is not necessarily a recital of the facts, nor is it a search for the truth; it is just a way to help the parties frame their view of the problem to be solved.
3) Private sessions – Information gathering
As mediators have no authoritative power (like arbitrators) they rely on informational power to move people towards resolution. A key feature of mediation is the opportunity for the mediator to meet privately with each party. This can never be done in an arbitration or litigation where the appearance of impartiality is paramount. A mediator can be neutral but partial; asking the parties open-ended questions to gauge their emotional undercurrents; strategising with them how they can best present their side of the story; coaching them on how to respond and supporting their efforts to build a bridge for settlement. As part of this process, the mediator is often reflecting back to the parties their statements and answers to questions to ensure that both they and the mediator are clear about what is important for the party.
4) Problem Identification
Together with the parties in joint session, the mediator tries to identify common interests and goals shared by the parties. The mediator follows the parties to where they want to go and allows them the opportunity to explore issues that are relevant and significant to them. In this way each person’s personal perspective of the events that led to the conflict are able to be presented, respected and accepted as their view of the situation.
5) Generating Options
A good mediation is more than a settlement conference where offers are traded back and forth until someone suggests to “split the difference”. Nor is it a decision process as a mediator lacks the power to determine any issue or make a finding. Instead, a good mediation is a design process where the parties engage in fashioning an outcome that meets their needs. Generating options for resolution involves a willingness to explore (instead of categorising), share perspectives (instead of trading positions) and to consider creative possibilities (instead of determining an outcome).
6) Reaching Agreement
When the parties reach a consensus, the mediator will help them fashion an agreement that provides a new basis for future relations.