What is mediation?
Mediation is a process whereby a third party neutral assists parties to attempt to reach an agreement about any matter that is in dispute between them.
Mediation is generally conducted through a series of joint meetings with the parties and their lawyers in which issues are discussed. The parties, with the assistance of the mediator and their lawyers, work towards finding solution(s) that are satisfactory to both parties. The mediator uses creative problem solving techniques to help the parties to reach their own agreement.
Why use mediation?
Mediation puts the parties back in control. They are able to discuss the issues that are important to them and make decisions that best suit their family situation. This is significantly better than a Judge/Magistrate making decisions about the parties’ lives and those of their family.
Mediation aims to do no harm to parties’ existing relationship. It focuses upon durable solutions for the future and not upon apportioning blame for the past. Mediation is confidential and matters can be discussed before the dispute has gone too far. Even if the parties are involved in litigation, mediation can be helpful to help reach a mutually satisfactory solution.
Mediation is normally significantly less costly than litigation.
Parties can often resolve a dispute in one day, rather than in months or even years in Court;
How do I get started?
- The parties’ lawyers usually approach the mediator. The mediation may be court ordered or agreed outside of court.
- The mediator will send information about the mediation to each party which will include a “Mediation Agreement” and a request for some basic background about the dispute between the parties. This may include a spreadsheet of assets and liabilities and a short description of the areas of dispute.
- The mediator will meet with each party and the lawyer attending the mediation, to explain the mediation process and further discuss the issues;
The lawyer’s role
The lawyer’s role is different in mediation to that at Court. Much of the conversation will take place between the parties and the mediator. The lawyers are there to act as advisors not advocates. Their role is to guide and provide legal advice and ensure that the matters that each party raised with them as being important are discussed. They are there to help generate possible options for resolution, reality test any proposed agreements and advise out possible outcomes if the matter doesn’t settle at mediation.
Are agreements reached at mediation legally binding?
If an agreement is reached, then the parties can have the agreement turned into a legally binding document. This would normally be done through the making of a Court order. It can also be done through an Aribtration award or Binding Financial Agreement.
What if the parties don’t reach agreement?
Even if the parties do not reach a final agreement on all issues, resolving some of the issues can lead to significant cost savings at trial. Also, each party will have a better understanding of the issues that concern the other, and therefore be in a better position to keep looking for possible solutions.