What happens at mediation?

What happens at mediation?

If you are in the process of separation, a cost-effective and efficient method to resolving a dispute is attending mediation. Mediation can be used to resolve parenting disputes or property disputes. But what happens at mediation?

There are certain key steps before we can attend a mediation:

1. Is there a history of domestic violence and/or are the parties appropriate for mediation? In some instances, mediation may not be appropriate, and we can make this assessment with you. However, in most cases, mediation can occur and there are ways to ensure the safety and comfort of the parties.
2. Has there been sufficient disclosure? If you are discussing a property division it is important that a balance sheet has been agreed and all documents supporting the values in the balance sheet have been disclosed. If there are still items on the balance sheet that are in dispute, they will need to be valued so that we have a clear picture of what the assets are to be divided.
3. Is the mediation going to be conducted all together? There are different ways mediation can occur.  The traditional mediation is conducted all in the same room with the parties and their respective lawyers. However, there is the option of a shuttle mediation where the parties remain in separate rooms and the mediator “shuttles” between the parties.  This is effective where a party may not feel safe in the presence of the other party. A decision can be made on the day if you are unsure.
4. How to choose a mediator? Usually, one party will propose a list of mediators and the other party will elect one from the list.  This process avoids any concern of bias as the mediator is chosen jointly.  There are many mediators of varying degrees of experience.  We have worked with many different mediators who have different skills sets and experience in different areas of family law and other areas of law.  Depending on your facts and circumstances, we can assist you in selecting the best mediator to suit your needs.

Depending on the chosen mediator, they may wish to conduct an “intake” interview.  This is an informal discussion with the mediator and each party separately either in the days before the mediation or first thing on the day of the mediation.  It is an important exercise for the mediator to ascertain your priorities and what you are hoping to achieve at the mediation.  It will also prepare you for what you can expect from the mediator.

Prior to the mediation, we prepare and exchange a document called a Position Paper.  The Position Paper sets out your proposal for the mediation and the legal basis you are making that proposal.  We will work with you in preparing this document.

The Position Paper and any offers made are on a “without prejudice” basis.  This means they cannot be raised at Court and allows both parties to freely make offers without any repercussion or adverse consequence on any current or future court proceeding.  For example, if you make an offer to accept a payment of $100,000 at the mediation it will not prevent you making an application to the Court seeking a payment of $200,000.

On the day of mediation, you will arrive with your lawyer and you will decide whether you would like to conduct the mediation together in the same room or via shuttle mediation.

Once this is decided, usually, each party is given the opportunity to give an “opening statement”.  We will work with you to prepare this to ensure it includes the message you wish to convey to the mediator and the other party.  The opening statement is not compulsory and if you do not feel comfortable making one, that is your decision.

It is normal for the lawyers and mediator to discuss the legal issues and balance sheet which may or may not occur with the parties present.  Once these issues are resolved, the negotiations begin.

Mediation can take a full day and sometimes even into the evening to reach a final resolution.  You should make sure you have made arrangements for childcare and that if you do need to leave by a particular time, this is raised at the start of the day with the mediator.

Mediation is the most common means of resolving disputes between parties and if you have not attempted mediation, we strongly encourage our clients to participate and attend if appropriate as it can avoid lengthy and costly delays in the only other alternative option, which is Court.

If you want to know whether mediation is appropriate for you, call Lewis Family Lawyers.