What is Mediation?

It’s a form of Alternative Dispute Resolution (ADR) – a variety of processes that enables people to settle disputes without resorting to expensive litigation or other at-risk court proceedings.

Mediation and other forms of ADR are non-adversarial. They are informal, confidential and non-prejudicial. The parties in dispute are not required to reach a settlement and are still entitled to litigate if the mediation process is unsuccessful. If a settlement is reached (and any settlement should be in writing and signed by all parties), it will be a binding and enforceable agreement in court.

Successful mediation can save substantial sums of money and alleviate the stress and distraction involved in litigation.

“Mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavor to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement.” (National Alternative Dispute Resolution Advisory Council, 2004; page 7.)1

“‘Self determination’ is the universal immutable right underpinning good mediation process. The Mediator is the guardian of the process and the conduit through which the parties are able to make decisions and judgments. The Mediators role is to assist in genuine reality testing and option scenarios - but always championing the party’s rights of self determination.” - Alan Wein

How does mediation work?

  1. The parties in dispute and their representatives are invited into a private room to meet the mediator. The parties sign a Mediation Engagement Agreement detailing the terms of the mediator’s engagement and the roles, duties and responsibilities of all parties involved in the dispute.
  2. The parties are then invited into a joint session caucus room where a Mediator’s Opening Statement defines the mediation process and sets out its context, framework and ground rules.
  3. Parties’ Statements and Mediator’s Summaries allow the parties and their representatives the opportunity to define their issues and interests and facts – as well as detail their expectations of the mediation process. (This is the first joint session of the parties where communication and direct negotiation is conducted in the presence of the Mediator.)
  4. Identification and Listing of Issues (Agenda Setting) sets the parameters of the dispute and matters that the parties and the mediator will need to deal with.
  5. The mediator and involved parties explore settlement options. This provides the opportunity for a “reality check” and allows open discussion of matters in the dispute. The Mediator may speak privately with each party and their representatives regarding issues raised and the negotiation process.
  6. At a Second Joint Exploratory Session, the parties negotiate options for resolution and clarify further issues. (These may or may not be accepted, agreed on or understood.)
  7. At a Concluding Joint Session, the terms of settlement are agreed and put in writing. This document is signed by the parties involved in the dispute.
  1. National Alternative Dispute Resolution Advisory Council (NADRAC) Dispute Resolution Terms Canberra, Australia: http://tiny.cc/KvYH9