The 12 steps include:
- The parties involved in the dispute agree to Mediation.
- A Mediator is selected. Usually this is a lawyer or someone with legal experience but that can depend on every case. It is not necessary that the Mediator has to be a lawyer.
- The parties agree to pay the Mediator's fees in equal shares. Different Mediators charge different rates per hour. Richard Armour of our office, a senior Legal practitioner with over 35 years’ experience as a Lawyer, is a qualified Mediator. He charges $250 per hour plus GST (i.e. if there are 2 parties involved, the cost is $125 per hour plus GST per person)
- The parties have an initial meeting with the Mediator and the Mediator explains the process and how it will work. Usually:
- Each party prepares their “Position Paper” setting out their claims and arguments
- The Position Papers are given to the Mediator in advance
- The time and place for the Mediation is agreed. This can be anywhere. Often it is conducted in an office where each party has their own meeting room and then there is a central room where the parties get together with the Mediator. It can be in an hotel or any other facility that is suitable. Generally, a full day is set aside as Mediations commonly take between 4 to 6 hours.
- The parties each sign a Mediation agreement which is the instruction and authority for the Mediator to conduct the Mediation which also confirms that if the parties come to an agreement with which they are content, the agreement is written up into a formal document that becomes binding in law [a copy of the Mediation Agreement is provided to the parties well before the actual date of the Mediation to enable them to fully consider the terms and conditions].
- The Mediation then proceeds at the agreed time and place. Each party is entitled to have their own lawyer present if they would like. They can have a friend or associate with them to provide assistance or comfort. Alternatively, they can attend without their lawyer but then if they have any questions during the Mediation, they can adjourn to contact their lawyer for advice.
- The Mediation usually begins with the Mediator asking for each party to explain their position in the presence of all parties in the common meeting room (or in separated rooms if preferred). Each party is given their turn to talk without interruption (again, either in the presence of each other or separately if preferred).
- Often the Mediator will then ask the parties to separate with one party going to their private room and the Mediator speaking with the other party in private (if not already in private rooms). The Mediator will then meet with the other party and speak with them in private.
- After speaking to the parties in private, the Mediator will often move between each of the private rooms discussing the matter with each party and explaining the position of the other party. In this way, offers and counter offers can move backwards and forwards between the rooms via the Mediator.
- By speaking to the parties in private, each party gets an opportunity to say anything they would like to say to the Mediator in confidence. Sometimes a party can tell the Mediator something which is very important to that person in terms of any settlement. They can either give permission or not to the Mediator to reveal that information to the other side. Often it is very helpful to the Mediator to know any confidential issues that the other party wants to keep confidential; in this way the Mediator can get a better understanding of the matters that are influencing one party that might in turn be a reason why that party otherwise “appears” to be unreasonable to the other party and therefore give a clearer indication of why one party is not agreeing to accept any particular offer.
- Depending on how the proceedings unfold, the Mediator may call the parties back into the common meeting room and explain in more detail the position of each party and look for areas of common ground where agreement might be reached.
- The Mediator is able to float various propositions between the parties with a view to "work shopping" possible outcomes to see how they would work out in real life if they were agreed. This gives parties a chance to consider propositions they might not otherwise consider knowing that anything they say is “off the record” in the sense that they cannot be held to anything they say in the course of the Mediation in any other proceedings or at any other time.
- If agreement cannot be reached initially, Mediation can be adjourned to enable the parties to go away and think about their positions, possibly, get some further advice from their lawyers and then resume the Mediation at a later time.
Visit our recent blog, Mediation: 12 Things You Need To Know for more information, or feel free to contact us.