Mediation is the process where participants are guided by a neutral person, or mediator, to discuss and isolate issues surrounding a dispute. We have offices at Newstead, Milton, Murarrie and North Lakes and can assist in the mediation process.
The aim is to reach a mutually acceptable solution that helps maintain, or at least does not further damage, the relationship of the people involved.
At Macpherson Family Law, as expert Family and Divorce Lawyers, with offices across Brisbane ( Newstead, Murarrie and Milton), and at North Lakes, we pride ourselves on focusing on assisting clients and other parties to explore alternative dispute resolution options rather than litigation. The benefits of 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 the individual circumstances
- where possible, will preserve or at least not further damage the relationship of the parties
- it is generally more cost effective and results in a quicker outcome than litigation.
One of the advantages of mediation is that the process can be individually tailored to the particular circumstances of the dispute and the parties involved. That said, there is a common approach that is generally consistent throughout most mediations.
The usual steps in a mediation include:
It is usual to prepare for the actual mediation by way of an intake process with the parties involved. This can occur in advance of the mediation event or as the very first part of the mediation. The intake process involves the participants, separately, providing information to the mediator and gives the parties the opportunity to say, in their own words, how they see the dispute, and the issues that are important to them. The mediator also has the opportunity to share with the participants an overview of the process and outline the mediator’s role. Sometimes it becomes clear, from the intake, that the parties should not be in the same room, in which case the mediation would proceed with separate meetings with each party throughout the course of the mediation.
Welcome and Explanation
At the commencement of the mediation event the mediator will welcome the parties (and their representatives where applicable) and set the agenda for the mediation. The aim of the initial welcome and opening is to clarify any uncertainties the parties may have about the process, including the role of the mediator, and set the ground rules for proceeding.
The mediator will normally invite each party to provide a brief outline of the dispute from their point of view. There is no magic in who speaks first and the mediator may nominate one or other party to set out their concerns initially. It is not intended at this stage that there be any significant interaction between the parties and each party is encouraged to allow the other party to state the position and to listen to that point of view.
Summary and Areas of Agreement
After the parties have set out their opening positions the mediator will then summarise the issues as they have emerged from those discussions and identify any areas of agreement that may be present.
Defining and Prioritising the Issues
The mediator having heard the parties’ opening positions and assessed whether any areas of agreement exist will then prepare, in conjunction with the participants, a list of issues and the priority in which they should be addressed. This agenda setting process sets the framework for the ongoing discussion.
Once the issues have been defined and the agenda set, the mediator will facilitate a discussion with the parties exploring each of the issues in some detail. It may be possible to resolve issues at this time and any agreement reached can be noted for formalisation at the end of the mediation. However the purpose of the exploration phase of the mediation is to encourage broader and deeper discussion of issues for each of the parties and encourage each party to hear and better understand the point of view of the other, and to put forward options or proposals to resolve matters.
Sometimes during the course of the mediation, usually after the exploration phase, the mediator will call a break and invite the parties to reflect on what has been said. This is an opportunity for the mediator to liaise individually with each party. Of course anything discussed by one party with the mediator is confidential and cannot be disclosed to the other party without consent. It does however give each party the opportunity to interface on a one-on-one basis with the mediator and set out any concerns or other issues that they did not feel comfortable raising in the open discussion. It is also an opportunity for the mediator to attempt to break down any deadlock and reality test any of the proposals put forward by the party individually, without being seen to undermine those ideas in the presence of the other party.
The process of joint or separate meetings may continue for some time, and the role of the mediator is to facilitate negotiation on each of the issues identified, with the aim of assisting the parties to come to an outcome that is acceptable to them.
If and when agreement can be reached it is normal to record that agreement in some way. Depending on the type of matter involved there may be a formal mechanism for recording the agreement or alternately it may be sufficient for the parties to informally record their agreement in a document known as “Heads of Agreement” which may subsequently be turned into a contract or Court Orders, for example, where applicable. The drafting of the agreement may itself involve further negotiation and fine tuning.
Once agreement has been reached, and documented in some way, the mediation would be closed by the mediator with the parties encouraged to follow through on the agreement reached between them. On occasions there may be a need for further mediation should new issues arise between the parties or difficulties occur in relation to implementation of the agreement reached.