Familiarise yourself with the mediation process
Mediation is different from other resolution processes, such as arbitration or trial of a proceeding. Mediation involves the parties conducting confidential negotiations, with the assistance of a mediator, in an attempt to reach an agreed settlement of the dispute. The mediator does not make a decision about your case or dispute. Instead, the mediator's role is to facilitate the negotiations by:
- focusing the parties on the issues in dispute
- highlighting the strengths and weaknesses of each party's case
- helping the parties to identify potential ways to resolve the dispute
Get yourself comfortable and relaxed
The litigation process can be stressful, and the mediation component is no different. Try to rest well the night before mediation. Mediation is less formal than a court trial, so wear clothes in which you feel comfortable. The mediation session may continue all day so consider what refreshments are available at or nearby the mediation venue. If necessary, bring your own food, drink, and snacks. People underestimate how much someone in a dispute will often give up to end long, draining negotiations, just because they are hungry or tired.
Mediation is often also an emotional experience. Try to anticipate how you might react to some of the things that are likely to be said during mediation, and prepare strategies to best manage your emotions in response. You are able to ask the mediator for breaks, should you become overwhelmed or upset at any stage.
Identify the issues and possible solutions
You will usually know the outcome that you wish to achieve prior to mediation. Taking a fixed position, however, reduces your chances of resolving the matter, as it restricts your ability to be creative and flexible in finding other possible ways to end the dispute that are acceptable to all parties. Before mediating you should:
- Identify the issues involved in the disputeThis includes speculating as to what issues might be important to the other party, as well as what his or her preferred outcomes might be.
- Determine what outcomes are possible. Be creative when thinking about ways to resolve the dispute. Even in a commercial dispute involving money or goods, there are often many ways in which the matter may be satisfactorily resolved. Consider also what each party realistically is and is not able to do it is of no use to agree to a resolution that is unworkable in practice.
- BATNA/WATNA"BATNA" stands for best or the most advantageous alternative course of action a party can take if negotiations fail and agreement cannot be reached. On the other hand, "WATNA" stands for the worst alternative to a negotiated outcome or, put more simply, what is the worst that could happen and what might be the consequences if negotiations were to fail and agreement could not be reached?
And so, when it comes to mediation, always consider two scenarios if there is no settlement: both your best course of action as well as the worst that might happen to you. These two scenarios will help you to understand the importance of negotiating and settling the dispute on acceptable (rather than ideal) terms. Remember, the end goal is to settle any dispute on terms "you can live with" rather than on optimum terms.
Plan your communications
When preparing for mediation, it is important to plan your communications in advance. Think about how you want to present the issues which are important to you. Equally, consider which matters you may not wish to disclose to the other party at mediation. Whilst mediation is generally confidential, and the communications of the parties may not be used in any subsequent trial of the matter, that does not mean that the other party cannot gain an advantage from information that it obtains during mediation. Planning your communications involves weighing up what information should be disclosed in order to maximize your chances of satisfactorily resolving the matter, against giving away tactical advantages, particularly if the matter does not resolve at mediation.
Lawyer/support person
Often parties are permitted to have a lawyer attend mediation. The advantages of engaging a lawyer to attend mediation with you are that your lawyer can:
- present the issues on your behalf
- advise you regarding legal issues that may be raised during mediation
- draft terms of settlement to protect your interests, should the matter resolve at mediation
- make you feel more comfortable generally
Given that the other party may choose to have a lawyer present, you should consider whether you are comfortable attending and conducting mediation without the assistance of a lawyer.
If a lawyer is not permitted to attend your mediation, usually you will be allowed to bring a support person, provided that he or she agrees to be bound by the confidentiality of the mediation process. Whilst a support person generally does not speak on your behalf, he or she can be present to make you feel more comfortable, and can talk to you privately about matters arising during mediation.
These tips will help you to prepare generally for mediation. If you wish to engage a lawyer to attend with you at mediation, or if you would like to receive advice concerning particular issues in your dispute prior to mediation, please contact us on 1300 205 506.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
Mitchell is the Managing Principal of our law practice.
He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.
