The efficacy of Mediation – Is it worth it? Part 2

The Mediation Process – Increasing Your Chances of Success

The article is the second in a two-part series about mediation. You can access the first article, here: “The efficacy of Mediation – Is it worth it?”. The first article explains the process of mediation and discusses the advantages of undertaking a mediation as a mechanism to avoid entering in protracted litigation and incurring legal costs, and discusses whether mediation is worth engaging in. This article provides a description of how the mediation process works, what you can expect and what actions you can take as a party to the mediation to increase your chances of success at a mediation.

How does mediation work?

Mediation provides an opportunity for the parties in a dispute to meet with their lawyers and a mediator. The mediator is an independent and impartial third party whose role is to help the parties try to reach an agreed settlement.

The mediator doesn’t just turn up on the day. They have usually done a significant amount of preparation work before mediation day to make sure they understand the dispute. This can include meeting the parties and/or their lawyers prior to the mediation.

No two mediations are the same, and a good mediator will change the way they conduct the mediation based on the type of dispute and the parties involved. This could include keeping parties apart if there is a significant amount of animosity, conducting sessions with the parties together with the mediator or conductions sessions with just the lawyers in the absence of the parties. The plan for the day will generally develop as the mediation is progressing, based on the particular circumstances.

In saying that, it is common for each party and their lawyers to have their own rooms for the day, as well as a separate room for the mediator. In addition, there is usually a large room that every party, their lawyers and the mediator can all meet together in.

It is often the expectation that all parties and their lawyers will be available for the entirety of the mediation session. This means that you should make arrangements to be present for the entire session, and ensure that all distractions and interruptions are minimised in advance.

What can you expect?

Before Mediation Day

Pre-mediation meetings, conducted by the mediator can be very helpful to ensure the mediator has a good grasp of the dispute, and that the parties have raised all key issues and have all the necessary information to ensure the best chance of success on the day.

The pre-mediation meeting may involve the parties, or could be conducted solely with their lawyers. Often, the following topics are discussed:

• The need for and content of any “position papers” (see below)
• The need for and extent of any documents that the mediator will be asked to read ahead of the mediation
• The matters that are not apparent from the dispute documents, including the parties’ underlying needs, interests, motivations and objectives
• Whether all necessary information and materials have been identified and made available to allow for informed discussions and negotiations
• Ensuring that all necessary participants will be present or available at mediation (this may include third parties not involved in the dispute, but necessary to settle, such as accountants or significant others)
• Preparation generally

Position papers are commonly drafted and provided to the other parties and the mediator before the mediation. They provide a party’s concise summary of the background to the matter, ideally in chronological order. They can set out a summary of what is in agreement between the parties, and what is in dispute, and may include references (and copies) of documents. They will explain the stage that the dispute is currently at; that is, whether Court proceedings have been commenced, and if they are listed for trial or other hearing. Usually, the position paper will also detail offers previously made by a party and provide a summary of what the party is hoping to achieve.

On Mediation Day

On the day of the mediation, you should arrive at the mediation location promptly, and you can expect to be shown to your allocated room for the day, where you can discuss the day ahead with your lawyers prior to the commencement of the mediation.

The mediator will arrive and introduce themselves to you, and may introduce the other parties if the day is commencing with a session with all the parties. If this is the case, each party, usually through their lawyer, may give an opening statement, where they set out how they view the dispute, and reiterate what they hope to achieve. Opening statements can be relatively informal – they do not need to be like making submissions in Court.

The Mediation will then progress with the mediator assisting the parties to explore the issues, and ways the matter could resolve. This generally occurs in private sessions with the mediator. You will also have lots of time throughout the day to discuss the matter with your lawyer in the absence of the mediator.

When negotiating different settlement options, its worth thinking outside the square, and your lawyer will help you do this by making suggestions. Remember, the settlement can be as creative as the parties want, and doesn’t need to be restricted to what a Court has the power to order. It’s worth thinking too about what the other party wants. There may be something that is very valuable to them, that you could offer at little cost. For example, in an employment dispute an employer may be prepared to offer a statement of service and allow an employee to resign instead of having their employment terminated. Whilst neither of these items is costly to the employer, it will be very valuable to the employee in finding alternate employment. Alternatively, in estate litigation there may be particular items that have significant sentimental value to a particular person. Offering or asking for those items can be an effective way of getting closer to an agreed settlement position.

Agreement… or not.

If you are successful in reaching a settlement agreement, it is preferable to document it on the day and have all parties sign it. In a Court-led mediation, this can be effected by having the case called on before a Magistrate or Judge and having orders made by the Court. Lawyers from PGC Legal often attend mediations with draft settlement agreements pre-prepared, to make this process more efficient on the day.

If you haven’t been able to resolve all matters, it’s worth considering what you can resolve. Are there aspects of the dispute that the parties have agreed upon, that can be settled so the scope of the dispute is reduced? Or has agreement between the parties been prevented by some unforeseen issue, that makes it worthwhile to adjourn the mediation to another day so that those issues can be resolved or clarified in the interim.

What can you do to increase the chance of a successful resolution at Mediation?

There are a few things that can be done in advance of the mediation to increase the chance of success on the day. They include:

• Collecting and providing all evidence and information that your legal representatives have asked you to collect. This might include anything from photographs, valuations and appraisals, to loan pre-approval
• Having all relevant professional advisors available / on call throughout the day. For example, you may need accounting or financial advice about how best to structure a deal
• Think carefully about any out of the ordinary things that would be of value to you in a settlement deal that would be out of the Courts’ power; and
• Think about things that would be meaningful/valuable to the other party that you would be willing to offer

Lawyers at PGC Legal consider mediation to be an excellent tool to reach agreed outcomes with the other parties to a dispute, avoiding the cost and stress of protracted litigation and achieving creative settlement outcomes. If you are engaged in a dispute, whether it is in Court yet or not, and would like to discuss a potential mediation of the dispute, please contact our offices to see how we may assist you.

If you would like advice about the mediation process, please contact Peter Charatsis, Brenton Priestley or Ashlee Provis.

Published 6 April 2022

The above is general in nature and is not intended to, and does not, constitute professional advice.