Mediation is a process in which parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no authority to bind participants to a negotiated agreement, but the parties are heavily invested in the agreed outcomes and they routinely complied with because of the effort expended by the parties in achieving the negotiated outcome. There is significant “buy in” from all mediation participants.
The mediator will also assist parties in regard to the content of the dispute or the process involved in achieving the negotiated outcome. Mediations may be undertaken voluntarily in an attempt to resolve issues before the parties positions become too entrenched, as a result of a court order, or as a compulsory step when parties dispute financial agreements, or court orders.
Before either party embarks on costly, time consuming and often bitter Court proceedings, we encourage you to participate in mediation. A “successful” mediation generally involves both parties giving ground and walking away from the mediation “sharing the pain”. Archaic concepts such as “winning” and “losing” should be avoided at all costs in mediations.
Prior to a mediation occurring each party sends their respective position statements to the mediator and possible outcomes. If the parties are already in Court, then the mediator will also receive a copy of each parties court documents. By the time the mediation commences the mediator will have a intimate understanding of the dispute and may have already formulated some ideas about how to achieve an outcome.
One of the crucial features of all mediations is that all communications, including any offers of settlement are confidential. The reason for that is that participants are encouraged to freely express and explore all avenues of resolution, without fear that it may later be used against them to cast doubt on their previously stated positions.
Mediations usually take place over the course of an entire day and mediators use different approaches to ensure parties approach the mediation with a genuine intent to resolve the issues and are actively engaged in the mediation. Mediators usually invite the parties into the same room, for an opening statement explaining the benefits of avoiding a court appearance or further court appearances. The parties then break into different rooms for each of them to formulate offers and counter offers with the assistance of their legal representatives.
Many mediations are resolved at the end of a long day when parties have reached their “bottom line” and there remains some distance between their respective “bottom lines”. At this point the mediator, or your legal representative will outline the best and worst alternatives to a negotiated agreement. In other words what is the worst/best possible outcome for you if you were to proceed to trial? An important question to ask yourself at this point in time is, “How good will it feel to wake up tomorrow and know that this is behind you?”
If the dispute is resolved at mediation, it is a good idea to make a written record of the outcome and have the parties sign the record as evidence of what was negotiated. This avoids potential conflict about what was agreed, or the possibility of “buyer’s/seller’s remorse” the next morning.
For more information about the family mediation services provided at our Gold Coast practice, we invite you to call our family lawyers on (07) 5591 2222 or contact us regarding a free 30-minute initial consultation.