Copyright © PAX Accredited Mediators 2015
How does mediation work? When two parties are involved in a civil dispute, the best solution might be the one that they both agree is fair. This is mediation’s goal. In mediation, the two parties come together to discuss terms that they would agree to as a way to settle their dispute. The mediator guides the parties through this process, helps the parties understand each other’s perspectives and reach agreement. Unlike court cases and arbitration, where the parties may be bound by law to follow a ruling they don’t agree with, parties in mediation only become bound by what they agree is fair. The mediator cannot impose any terms on a party that the party does not accept. Before deciding whether mediation is right for your dispute, you should take into consideration other aspects of the mediation process, such as how to find the right mediator and what kinds of solutions mediation can and can’t proffer. Why choose mediation? Parties might choose mediation over litigation for a variety of reasons. Mediation often offers the parties faster results at a much lower cost than hiring attorneys to bring formal lawsuits would. Additionally, mediation allows the parties to control the solution, rather than relying on a judge to make a ruling that neither party agrees to. How do I know  mediation will be fair? Mediators are impartial. The mediator does not take sides, and is always there for both of you. Mediators don’t give advice, although they do give information about legal principles and explain some of the things you should be thinking about. The mediator doesn’t ever make any decisions for you; you work out between yourselves what proposals you want to accept. Either of you can stop the mediation process at any time; mediation will only go ahead if both of you want it to. What happens if I say something in mediation but then change my mind? Nothing you do or say during a mediation will create a legally binding agreement. At the end of the mediation process your mediator will explain to you how to turn your ideas into a legally binding agreement and/or a court order, which normally includes getting legal advice. How private is the process and can what I say in mediation be used against me later? The mediation process is “without prejudice” which means that the information clients share with the mediator is kept confidential, with some very limited exceptions (similar to the exceptions that apply to lawyers and therapists and counsellors). Proposals put forward during mediation cannot be referred to in court proceedings. If you try to mediate but it doesn’t work, the court will never be told why the mediation wasn’t successful. Is mediation binding on the parties? A signed Memorandum of Understanding incorporating all the agreements reached between the parties, can be made binding on the parties if it is made an order of court. An attorney can assist you with this. What sort of things will I be expected to do during the mediation process? After signing the agreement to mediate, both of you will work with the mediator to: Explain your situation. Set the mediation agenda. The mediation sessions are tailored around what you want and need to discuss. Decide the priority of the issues. Some issues are more pressing than others and need to be resolved first, e.g., short-term financial support, holidays, contact. Clarify the issues: sometimes it is not certain what matters are really in dispute and clarifying these avoids future misunderstanding. Consider whether any other specialists might be necessary to help you e.g. psychologists or therapists. Find the common ground. Provide/obtain information. If you have financial issues to discuss, it is particularly important to make sure  you are transparant. This involves providing details about assets and liabilities and your income and expenditure, very much as you have to if you go to court. Look at the various options and reality test those options. Interim arrangements allow the parties to try them out and adjust them if necessary. Arrive at the solutions that best suit both of you and work out the details of your proposals.