Mediation is often used as a pre-emptive measure prior to court proceedings with the motive of reaching a settlement without judiciary assistance. Mediation is used tactically amongst most fields of law as an informal, flexible approach to securing the best outcome for clients. The common perspective is that the benefits of mediation tend to far outweigh the downfalls as mediation often reduces costs and time for the parties involved. Whether or not the mediation process accomplishes complete settlement is dependent on each case, however, more often than not, parties are able to dilute the issues in dispute.
The voluntary process of mediation involves utilising a Mediator who is an independent third party who assists in improving the parties’ communication skills. The Mediator will not enforce their opinion on the parties, rather simply supports the parties to reach their own agreement. With the popularity of mediation increasing with individuals, employers, companies, and the courts, it is now common to find a ‘mediation’ clause or ‘alternative dispute resolution’ clause incorporated into contracts. Furthermore, family courts, along with other courts, have become more prudent in ensuring parties attend mediation services prior to addressing the court. Courts have tread so far as to penalise parties in costs for failing to attend mediation or alternative dispute resolution services prior to, or during, court proceedings.
The primary step in commencing the mediation process is to have all parties in agreement to engage in mediation. Upon agreement, a vital component is for the parties to also agree on the selection of the mediator. To avoid disputes arising in this respect, many contracts with mediation clauses now stipulate who the mediator will be or how one will be chosen.
Different circumstances present varying requirements; most parties feel more comfortable and supported with legal representation in attendance during the mediation process, particularly when technical or legal aspects are discussed. During the preliminary stages of the mediation session, the mediator will explain the procedure and boundaries of the session. Each mediator will approach the session with their individual style, however, will not provide recommendations or force a solution upon a party. The sessions themselves are to remain confidential between the parties and the mediator. The mediator will ensure both parties have ample opportunity to present their perspective on the situation and proposals to reach an agreement. If necessary, the mediator may have private sessions with each of the parties, known as caucuses. Legal representatives may also be in attendance at the private caucuses.
To best prepare for a mediation session, it would be prudent for the parties involved to take the most practical view of their situation and identify a list of issues and potentially acceptable solutions. An open mind is often beneficial for the parties to reach an amicable solution. By undertaking a cost-benefit analysis of entering into mediation instead of the more rigorous court process, frequently parties tend to reach unorthodox solutions during mediation that would otherwise have not come to light. One’s mind wanders to the familiar example of the neighbour with a squeaky trampoline. One’s neighbour loved to bounce on his trampoline after work causing a terrible squeaking noise to one’s dismay. Through mediation, a cost-effective solution was sought to resolve this issue – a little spray of WD40 and the squeaking was no more. Although the solution may not be as easily obtainable in most situations, the mediation process has proven to assist many parties outside of the court system.