What to Expect at Mediation

by Jacqui Brauman

What to Expect at Mediation

by Jacqui Brauman

by Jacqui Brauman

Mediation is really about having someone facilitate a difficult discussion, to try and come to an agreement. 

The mediator’s not there to give advice. The mediator’s there to try and smooth the path to a settlement.

Mediations can be run quite a few different ways and it depends at what stage it’s run. 

An early stage mediation has a lot of benefits.

An early stage mediation generally happens before there is any court proceedings. It’s to try and prevent court proceedings, and it can be with or without lawyers.

If you have the opportunity to do an early stage mediation, I think that it’s highly recommended with the right mediator.

If you are worried about being in the same room as someone, usually mediators have the space to be able to have separate breakout rooms and so forth. But at the moment, with a lot of things done online and via Zoom, you can find mediators that run everything online. That way, you won’t feel uncomfortable being in the same room.

After an intake conversation, separately with the mediator, your mediation date will be booked.

You will begin all together with the mediator and the other party, and talk about what issues you need to resolve. 

The mediator helps you to look at all options available for each issue, and helps you to really discuss the options openly.

You will have individual time with the mediator. Take this time to have a reality check, and express anything that you’re struggling to raise.

People who participate in a mediation sign an agreement to say that anything said at the mediation is confidential and can’t be used by either party, against the other party, further down the line. 

So it’s all done with the idea that people can talk openly, so that they can actually try and resolve things. 

What is said in mediation, stays in mediation!

If lawyers are involved the mediation is often more of a shuttle-style, where there is very little time to talk directly, and you remain in separate rooms with your lawyer. 

Late stage mediation often has lawyers involved, because the problem has usually gone to Court by now, and this is a Court-ordered mediation.

This is the form of mediation, where tensions are probably far higher than an early mediation and people may have taken firmer positions, that you’re likely to have a Court Registrar or a barrister is your mediator. They have legal training, and are often more prepared to give you clear advice about the offers and consequences you are considering during mediation.

In late-stage and shuttle-style mediations, often options aren’t explored as thoroughly as they might be at early stage mediation. This is because a lot of solicitors will have thought about options prior and ruled things out, so they’re not generally discussed as openly as they might be. 

The downside about having options rules out for you, often without you knowing about them or discussing them, is that you might see a creative solution that the lawyers didn’t know was available. So you can miss out on that benefit, the later the mediation, and the more lawyers that are involved.

There are huge benefits for mediation. Not only do they keep costs down, and have the potential to solve issues quickly, but you also get to make your own decision about the agreement – not having a lawyer make it for you, or having a judge make it for you.

The earlier parties can participate in mediation, the better. 

Sometimes people think that it’s a waste of time and money to do a mediation before Court proceedings are started. Firstly, because they don’t think there’s enough leverage to get the other party to the table, to actually have a discussion, a fruitful discussion. And secondly, they think that if the early stage mediation fails, that it’s money wasted. Both of which reasons, I don’t think are valid. 

I still encourage early stage mediation if at all possible, because if you can resolve it earlier, rather than later, it’s better for everyone. 

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