What to Expect at Mediation

by Jacqui Brauman

What to Expect at Mediation

by Jacqui Brauman

by Jacqui Brauman

Mediations can be run quite a few different ways, and it depends at what stage the mediation is run. 

So early-stage mediation has a lot of benefits to it, and 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.

So in an early-stage mediation, sometimes it’s run like a shuttle, but sometimes not. 

The shuttle form of mediation, a late-stage style of mediation that lawyers are often involved in is a strange sort of hybrid kind of mediation that’s evolved and isn’t the true concept of what mediation should be.

So if you have the opportunity to do an early-stage meditation, it’s highly recommended with the right mediator.

If you’re worried about being in the same room as the other person, usually mediators have the space to be able to have separate breakout rooms. A lot of mediations can now be done online and via Zoom. 

You will have individual time with the mediator yourself. You will have time together with the mediator and the other party. And the mediator really has a lot of flexibility about how to give you time by yourself, and to give you time with them.

Mediation is really about having someone facilitate a discussion between the parties to try and come to a settlement. So the mediator really tries to look at all options available and really discuss the options openly in a facilitated way. 

The mediator’s not there to give advice. 

The mediator’s there to try and smooth the path to a settlement.

Now, late-stage mediation is a very different sort of occurrence. A late-stage mediation is usually because the matter is in court, so there’s proceedings. The parties usually have solicitors already.Courts don’t like to book something in for a trial unless the parties have tried to resolve it first. So generally the court has a compulsory mediation process built in.

Now this is the form of mediation where tensions are probably far higher than an early mediation, and people may have taken firmer positions, and the solicitors are all involved as well. Quite often, then, you end up with a barrister representing you as well. So there ends up being two lawyers for each party, and a mediator is often at this stage a barrister or a solicitor mediator, rather than someone who is not in the legal industry. 

These late-stage mediations have morphed themselves into a shuttle situation where you go along to mediation and the mediation starts as an open forum with everyone in the same room with some initial statements said, but no offers made and very little is done is a joint room generally.

The parties then go into separate rooms, and it’s a shuttle because the mediator is shuttling backwards and forwards, taking offers backwards and forwards. Sometimes options aren’t explored as thoroughly as they might be at early stage, 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, particularly in a joint forum or in an early-stage mediation.

There’s huge benefits for mediation. Most things settle at mediation, either early- or late-stage. I think the figures are up about 95%. So they are quite successful. 

The other thing about mediation is that 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. So that’s another benefit of mediation.

So 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 fruitful discussion, and secondly they think that if the early-stage mediation fails, that it’s money wasted. Both of these reasons aren’t really valid. An early-stage mediation can still narrow issues significantly, and bring up options that might not otherwise have been considered.

There are many services that provide free dispute resolution, such as the Dispute Settlement Centre of Victoria, Consumer Affairs, and some ombudsman services also use a mediation-style approach.

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