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Mediation

Liston and Clifton ’s accredited mediators are able to provide mediation services, particularly in the area of family and de facto relationship matters pertaining to property and children and commercial and general family and small business disputes.

What is mediation?

Mediation is a process in which an outside person assists two or more people or organisations who are in dispute, to communicate, to negotiate and to make mutually satisfactory decisions on the disputes between them.  It is a form of "assisted decision-making".

What are the events leading up to mediation?

Every mediation process is different, but normally, a mediation involves the following initial steps:

  • The mediator is approached by one person or organisation with a request for information or mediation assistance.
  • The mediator contacts the other persons or organisations involved and asks if they are willing to consider mediation.
  • The mediator sends to each person or group information about mediation and about the mediator, and a mediation contract for the parties to complete.  Sometimes the mediator requests written background information on the dispute.
  • The mediator makes contact with each individual or organization to explain the process and to assess the suitability of the dispute for mediation.  This may involve telephone contact or personal meetings in which the mediator prepares each side for the mediation.
  • A time and place, suitable for all persons, is arranged for the mediation meeting.

What happens in the mediation meeting?

The mediator welcomes each person and explains the mediation process.  He or she first asks each person to talk in turn about their principal concerns.

The mediator clarifies the parties' concerns and translates them into issues for discussion.  The issues are written up and listed in order of priority.  The mediator then defines the areas where the parties are in agreement or disagreement, and provides a structure for the discussions.  Each party is asked to give their views and explain their perceptions to the other on each issue, and together the parties explore options for resolving the points of difference.  Thereby an agreement is pieced together, like a jigsaw.

Who can be present and how confidential is it?

Advisers, supporters, witnesses and other persons can be present at the mediation if the parties both agree, and if those attending sign a confidentiality undertaking.

The parties can agree on what will be said publicly about the mediation.  Neither party can lead evidence in court about what was said in the mediation, nor produce in court documents prepared for the mediation.

What is legal status of agreements reached at mediation?

This depends on the wishes of the parties.  The parties and their advisers, with assistance from the mediator, will record the outcome in a Heads of Agreement document which contains both matters which have been agreed and the issues, if any, which are still to be settled.  The parties can redraft the agreement into a legally binding document after receiving advice from their lawyers or other professional advisers.

What if I feel uncomfortable in the mediation?

It is a normal part of the mediation process for the mediator to meet separately with each party on a confidential basis.  You can also ask to speak to the mediator alone or you ask for the mediation session to be adjourned of you have the need.  You can always express any concerns openly in the mediation and the mediator will try to deal with them there and then.

Some of the mediator's tasks are to create a favourable environment for dispute resolution, to assist each side to negotiate, and to minimize intimidation or other causes of anxiety in the parties.

What does it cost?

Mediators charge at an agreed hourly rate for preparation, for actual meeting times, and for other expenses, if any, such as travel. Many mediations are complete after 4-10 hours of work.

What happens afterwards?

One aim of mediation is to model a method of working through disputes so that the parties can solve their own disputes in the future.  Mediated agreements often contain a dispute resolution clause in terms of which the parties commit themselves, in the event of a breach of the agreement, to come back to mediation before initiation of court proceedings.


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