By Stephanie Azzi
Mediation involves a neutral third party who facilitates parties to reach an agreement. The mediator is appointed by the parties or by a Court. The mediator does not determine disputes as an arbitrator or a judge would and they will not provide legal advice.
A mediator assists parties identify and explore options, negotiate and resolve their dispute.
The Process
- There are separate Intake Assessments. These are conducted either at the beginning of the mediation, or earlier, with the mediator and each of the parties (and their lawyers) separately.
- The mediator starts with an Opening Statement in a Joint Session (if applicable). The mediator explains in this Opening Statement his/her impartiality and the confidentiality of mediation and the process itself.
- The mediator asks each party what they hope to achieve out of mediation. Each party (or their lawyer) makes an Opening Statement in a Joint Session (if applicable) and the mediator summarises those statements.
- The mediator identifies common ground between the parties, writes an agenda and asks the parties to prioritise the issues.
- The participants, with the assistance of the mediator, explore each agenda item. Through the exploration stage the participants and the mediator explore the underlying concerns, interests and needs to lead onto options/obstacles.
- The participants and the mediator generate options and possible solutions.
- Separate private sessions are used if needed to attempt to encourage the parties to reach agreement.
- At the conclusion of the private sessions, the participants and the mediator come back into a joint session (if applicable) to refine options into possible solutions.
- If an agreement is reached, the mediator assists the participants in documenting the agreement.
Mediation sessions can be conducted in one of the following ways:
- Joint sessions: where the participants, the mediator and their lawyers (if applicable) sit together in one room.
- Shuttle Mediation: the participants are kept in separate rooms and the Mediator shuttles back and forth.
- Co-mediation: is a mediation involving multiple mediators.
Advantages of Mediation:
- It is confidential.
- A mediation can avoid a lengthy, expensive and stressful adversarial court process.
- Involves an independent and experienced third party in the process who can be a chosen expert in the area of dispute (unlike a judge who cannot be chosen).
- Creates a positive environment to improve communication between the parties and their lawyers.
- The process facilitates negotiation and agreement in a safe environment.
Disadvantages of Mediation
- One of the concerns in a mediation is that one of the parties may still be pressuredinto a settlement, because they lack the financial resources to litigate or lack the emotional fortitude to continue the fight and “want it over and done with”.
- As in Collaborative Law there is still care that needs to be taken to ensure participants are in a relatively equal bargaining position.
- It remains important for the parties’ lawyers to ensure that as many outstanding issues are resolved prior to mediation including disclosure and valuations, if required.
- The success of the mediation depends on the ability of the mediator.
Contact one of our RAMP mediators today if you are looking for a qualified mediator to mediate your family law matter.