MEDIATION SERVICES 

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Who is involved in a mediation?

In addition to the mediator, the following people may be present at a mediation:

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The parties

Each party is expected to attend the mediation themselves, although sometimes there may be a representative attending on their behalf. The party or the party’s representative must have the authority and capacity to settle the dispute.

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Legal representatives

If a party has legal representatives they will generally attend with the party which depending on the dispute could be a solicitor or barrister.

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Support people

Subject to agreement from the other party, a party may bring a “support person” with them. This person will be required to sign a confidentiality agreement and may only provide support and guidance, not to unduly influence or make decisions for the party.

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What is the process of mediation?

A mediation is a flexible process that is facilitated by the mediator to resolve a dispute. The approaches used in a mediation can be influenced by the nature of the dispute and the relationship between the parties.

 

As mediations are often emotional and tiring, the mediator will often structure appropriate breaks during the session. ​It is important for parties (and their legal representatives)  communicate openly with the mediator about any of their concerns so that the mediator can determine the appropriate approach.

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What are the steps?

Pre-mediation:

Parties complete and submit the Mediation Intake form when booking the mediation. The mediator will then contact both parties (or via their legal representatives) and provide a contract of engagement including outline of costs. Payment of the anticipated costs is usually shared equally between the parties and must be made prior to the mediation.

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Step 1: Provision of dispute material and a position paper

One week prior to the mediation, each party (or via their legal representatives) will provide material relevant to the dispute to the mediator with a position paper. This may include any relevant documents (such as previous contracts etc) and a short position document summarising the dispute, the party’s position and objectives coming into mediation.​

 

Step 2: Pre-mediation meeting

Each party may be invited to have a brief confidential meeting with the mediator before the mediation begins. This may occur on the day of, or some days prior to, the mediation.

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The purpose of this confidential meeting is for the parties to communicate anything they consider to be particularly important to the mediator, and for the mediator to outline the process they propose for the conduct of the mediation.

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Step 3: Joint session

The mediation often starts with a joint session with the parties, their legal representatives and the mediator present. In some cases, such as matters where there is a history of violence between the parties, only lawyers will attend the joint session, or there may be no joint session at all.

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In the joint session (sometimes referred to as an ‘opening’ session) each party sets out what they identify as the issues, and their proposed solution. It may continue with other information being shared to help each party understand the issues. In some cases an offer may be made by a party during the joint session.

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Step 4: Private sessions

Following the joint session, the parties will be separated into private rooms with their legal representatives. The mediator will usually meet with the parties in private sessions in turn.

The mediator may discuss the issues in dispute further with a party, as well as exploring proposals for settlement. The mediator will also convey offers made by the parties during the private sessions, and can assist parties in deciding whether to accept an offer or make a counteroffer.

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Step 5: Final joint session and Agreement

The parties then reconvene for a joint final session at the conclusion of the mediation to work towards an agreement and settlement. During this time the parties then put together the details of the agreement to resolve he dispute. This stage is the conclusion of the mediation. During this stage if the parties are able to resolve their dispute then an agreement will be drafted. This will be signed and provided to all parties. If required by a Court, the agreement may be sent through to legal representatives to formalise and submit as directed.  

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The 3 C's for in a mediation

Confidentiality

The entire mediation process is confidential and cannot be referred to outside the mediation. This is to ensure that parties can speak openly and frankly about their dispute during the mediation in an attempt to find a resolution. A mediation is ‘without prejudice’ which means that nothing that is said or offers made during the process, can be used later or in a legal proceedings. ​The mediator will also use private rooms during private sessions between one party (and its representatives) and the mediator for additional confidential discussions so that all issues can be raised in a confidential manner. Anything a party says to the mediator in the private session remains confidential unless the party gives the mediator permission to disclose it to the other party.

 

The Citron difference in mediation is that we work with parties in the private session to look at the behaviours underpinning the dispute, and work out how to help the parties move towards a full and lasting resolution. 

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Compromise

For mediation to be successful, the parties in dispute must be willing to compromise to find a solution each party can live with. It is important to consider your rights but also what you could live with as a compromise. This is not an easy or quick process but you will need to be prepared to offer trade-offs, so having a clear idea of what is most important to you is crucial.

Overall, it is important to come to the mediation with an open mind, be willing to discuss the issues openly and explore different solutions that you may not have previously thought of. 

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Consideration

Consider the costs (financial, emotional, physical, time and psychologically) of not coming to an agreement and resolving the matter at mediation. Weighing up these costs with due consideration can outweigh a desire to be right and continue with the dispute. You may consider the ongoing stress or emotional impact while the dispute is unresolved, and the time and energy that is taken away from your business, friends or family while you deal with the dispute.

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Prior to the mediation it may be necessary and appropriate to get legal, accounting or financial advice for all possible outcomes, so that you are ready and prepared to compromise and settle the matter. It is important for you to obtain this advice before agreeing to a settlement, as if you are bound to a settlement agreement but have not considered or been advised of the adverse impact that settlement may have on you and your financial position, you will have to live with the consequences.