What is mediation?

Mediation is evenhanded facilitation of a structured process of decision making. It is particularly suitable for dispute resolution and for decision-making, especially when there is a range of points of view among the people concerned. The mediator assists the participants to have a careful, focused conversation about agreed issues. The aim is to reach agreements, if agreement is appropriate.

According to the Mediator Standards Board “… mediation is a process in which the participants, with the even-handed support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator facilitates participants through the process to reach their own decisions.” Adapted from the National Mediator Accreditation Standards 2012 Description of a mediation process. (My adaptations in italics.)

Mediation is designed to create an environment in which you and the other people involved can each ‘put your best foot forward’. Mediation provides you with the opportunity to consider your perspective in the context of other participants’ perspectives, and for others to consider their perspectives in the context of your perspective. It is an opportunity for you and each other participant to shape your future: first to discuss changing what you find difficult to accept and then to discuss accepting what you find difficult to change.

Mediation relies on your patience and your commitment to listening generously. It also relies on you to trust the process to enable everyone to have their say, to be patient and to listen generously. It is my role to design and implement a fair process and to check in with you regularly and privately to hear how you are experiencing it.

This page and our Mediation page provide a comprehensive overview of mediation. You can find a detailed explanation of mediation in the Mediation Handbook.

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How long does it take?

From start to finish, mediations generally take 3 to 6 weeks, depending upon your availability and the availability of all other participants. On average, I hold two or three sessions. Each session is scheduled for up to 3 hours. Mediation works well when you and the other participants are feeling relatively fresh and alert. I can arrange longer joint sessions over a shorter period of time if agreed by all involved.

I book up to three appointments at the start of your mediation so that everyone involved can plan ahead. Mediation takes place at the pace which suits you and the other participants. At each session you can be comfortable in the knowledge that, with the agreement of everybody, your mediation will finish during that session or if agreed, it will continue to another session.

Between the sessions is your time for reflection, consideration and obtaining advice so that you can review the progress of your mediation and decide whether mediation remains suitable.

Collectively you and the other participants decide how long it takes. I find people are often motivated to reach a conclusion as soon as possible so mediation tends to move relatively quickly. Sometimes it can assist if I slow the process down to make more space for listening and considering. I make my decisions regarding the pace of your mediation in consultation with you and each of the people involved.

In most situations mediation is voluntary. I encourage you to remain at mediation only while it is working for you.

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What happens? Summary

I mediate in three clearly defined stages. Following this summary there is a detailed description. In Stage 1, after a telephone call and/or email exchange with me, you, and each other potential participant, have an initial separate session with me. The goal of the initial separate sessions is to decide whether mediation is suitable in your current circumstances. If everyone agrees that the circumstances are suitable for mediation, Stage 2, which is a series of joint sessions, is commenced. The goal of joint sessions is to reach agreement, if agreement is appropriate. The goal of Stage 3 is to finalise any outstanding aspects of your mediation. This can include you completing the feedback requests and sometimes involves documentation to be completed by me.

Stage 1: Assessment for suitability of circumstances for mediation

Intake: I respond to your initial inquiries and address pressing questions, usually by phone or email.
Initial Separate Session: you and I meet to confirm circumstances are suitable for mediation and to explain the essence and elements of mediation.

Stage 2: Joint Sessions

First Joint Session

Mediator’s opening comments: I recap the essence and elements of mediation by clarifying the role of each person in the room
Participants’ opening comments: you and each other participant have an uninterrupted opportunity to explain why you are at mediation and what you would like to accomplish by mediating
Mediator’s summary: I summarise what I have heard you and each other participant say in your opening comments to provide an opportunity for everyone in the room to hear and consider what has been said
Agenda setting: I identify mutual, future focused topics from your opening comments to commence discussions
Clarification: I asked questions to provide the opportunity for you and each other participant to clarify, explore and gather information to broaden the context of each agenda item

First and subsequent Joint Sessions (including Private Sessions as required)

Option generation: I assist you to identify a wide range of possible components of an agreement on each of the agenda items
Option reality testing: I assist you to consider the more probable components of an agreement on each of the agenda items
Negotiation: I assist you each to adjust and fine-tune the most promising and practical of the options
Agreement: I record your agreements in your words on the whiteboard
Close: I summarise the mediation and next steps so that you can each leave with more certainty than when you came in

Stage 3: After mediation

Full agreement: you and each of the other participants cooperate to have your agreement recorded in a way that you regard as a commitment eg. signed printouts from the white board; drawn up by your lawyers; other ways of recording your agreement are possible.

Partial agreement: you and each of the other participants cooperate to have your agreements recorded in a way that you regard as a commitment and independently decide how to address remaining issues which can include a return to mediation.

No agreement: you and each of the other participants decide independently how to proceed possibly including, for example, accept the situation; return to mediation; conciliate, arbitrate; litigate.

What happens? Detailed description

Stage 1: Initial separate sessions - assessment of circumstances for suitability for Mediation

To make contact please send me an email or telephone. I will respond by telephone or email to answer your initial questions. I send you a Letter of Engagement together with information to assist with your mediation.

To begin you meet with me for a private initial separate session which usually takes one to two hours. I prefer to meet you in person, even if you would like to discuss progressing to online or phone mediation. You are welcome to be accompanied by one or more of your trusted advisors, that is, your personal and/or your professional support people during this session.

This is your opportunity to describe your circumstances and your point of view and to ask questions. I explain the mediation process and answer your questions. You and I then tentatively discuss whether mediation is likely to be suitable in the current circumstances, noting that I will make a decision regarding suitability only after I have met and conducted initial separate sessions with you and with each other potential participant. As soon as possible after meeting with each potential participant, I will advise you of my decision. In anticipation of mediation being suitable, you and I discuss steps you can take to prepare for mediation. I will also raise for discussion what your alternatives may be if one of the other potential participants decides against mediation or if, after meeting the other participants, the rare situation arises where I assess mediation as unsuitable for your circumstances.

Next I have the same private individual sessions with each of the other people involved. I listen to each person as if they are the first person I have met. Each person has the same opportunity to discuss their point of view, to ask questions about the mediation process; to decide whether mediation is suitable for and acceptable to them and to discuss steps they will take to prepare for mediation.

Then taking into account your comments, the comments of the other people involved and my own assessment, I make a recommendation to you and to each of the people involved about whether mediation is suitable at this time. If I assess mediation as suitable and if everyone agrees to go ahead, I make appointments for your joint sessions at times to suit the availability of each of the people involved. In the rare situation in which I assess mediation as unsuitable you and each of the other people involved can give consideration to your alternatives as discussed at your initial separate session.

Stage 2: Joint Sessions - to reach agreement if agreement is appropriate

Based on yours and each other initial separate session and maintaining strict confidentiality of information provided in each initial separate session, I develop a mediation approach to suit the particular circumstances. I design the process to ensure that you and the other person/people involved have the highest likelihood of reaching practical and long lasting agreements.

I generally book three, 3 hour joint session appointments. Sometimes two sessions are sufficient. Sometimes four sessions are necessary.

I can arrange longer joint sessions if necessary and if agreed by all involved. However, mediation sessions can be intense and are generally more productive for all when concentration and focus can be maintained throughout. Three hour sessions, with time for reflection between sessions, work well.

Where appropriate and agreed the joint sessions can be conducted with each of you attending at different times. Some or all of the joint sessions can also be conducted online.

To begin your joint sessions I facilitate solution-focused conversations in which you and each other person raise the issues that are important to you and listen to the issues that are important to each other person. I manage the conversations so that you and each other person involved have a fair opportunity to be heard and to explain your points of view. I facilitate movement of the conversations from speaking to listening and, at the appropriate time, considering options for solutions. Finally the conversations focus on whether the tentative agreements reached during discussions about options can be confirmed as satisfactory. If so, the agreements are noted. If not, I facilitate further discussion or agreements to obtain more information or another approach to reaching agreement. In mediation all agreements reached during the mediation are tentative agreements until they are specifically confirmed by all as satisfactory.

Throughout each joint session I record your tentative agreements on the whiteboard. I regularly call a break for a private session so I can check in on how the session is going for you and ask about what it is that you think I may not be noticing. I do the same for each other participant. You can call other breaks whenever you would like to. A five-minute break often results in the following hour being significantly more productive than if a break had not been called.

At the end of each joint session I facilitate a brief review to note progress and to form an agreed action plan in preparation for your next session. Toward the end of the third session, if your mediation is not concluded, I review the progress with you and the other participants and facilitate a discussion to decide on next steps. Further sessions are scheduled if agreed by all.

Between joint sessions I keep in contact with you and the other people involved, usually by email and sometimes by telephone, as necessary.

To conclude your mediation I facilitate a review of the practicality of the agreements confirmed by all as satisfactory and to ensure that the steps for implementing and if necessary, formalising your agreements are clear. This requires that each agreement is

• expressed clearly
• practical for each of you individually as well as jointly
• practical in the context of your commitments
• practical in day-to-day life

Following your mediation there are a number of ways that you can finalise your agreements. I discuss the alternatives with you during your initial separate session as well as periodically during joint sessions.

Stage 3: After Mediation - to finalise any remaining aspects

Following your mediation, there are sometimes some documents to be completed, depending on what you plan to do next.

Finally, I will provide a feedback form. I very much appreciate your comments. They form a significant part of my approach to continuous improvement.

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What does it cost?

First you and I speak on the phone for no charge. I charge an hourly fee for your initial separate session, joint sessions and related activities. Where costs are shared equally between two people, for example, my fees are likely to cost each person from approximately $3000 (including GST) when there are two 3-hour joint sessions and from approximately $4500 (including GST) when there are three 3-hour sessions.

Each mediation is unique. Your particular circumstances will affect my total fee. Costs will be higher if additional sessions are agreed and where I have a high level of contact with you and/or the other participants between your sessions.

Mediation is a significant investment, however it can be moderate in cost compared with the cost to you of continuing the conflict. It is also moderate in cost compared with legal negotiations, settlement conferences and going to court. Your mediation fees are very likely to buy you a durable agreement that is satisfactory to all and the possibility of respectful relationships. Continuing the conflict and/or legal negotiations rarely result in satisfactory, durable agreements and respectful relationships.

According to the National Standards for Resolving Disputes “Disputes should be resolved in the simplest and most cost effective way. Steps to resolve disputes including using ADR processes, wherever appropriate, should be made as early as possible and both before and throughout any court or tribunal proceedings.”

If you wish to be accompanied to a session or sessions by your lawyer or other professional advisor, please consult them regarding their fees.

I appreciate that during the time of mediation other aspects of your life can be changing rapidly and sometimes unexpectedly. I prefer you to come to mediation when you are feeling prepared so there are no postponement or cancellation fees in my practice. That is, I charge only for sessions which are attended.

I provide full details of my fees and how they apply before you commit to mediation.

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Is it confidential?

Generally, Mediation discussions and communications are confidential within the limits of the law. That is, what is written and said in, and related to, your mediation stays ‘in the room’. In addition, mediation discussions specifically cannot be used (are inadmissible) in a court or in an arbitration or in a tribunal or in any other legal action that is issued regarding the matters under discussion at mediation. Confidentiality continues after your mediation has concluded.

Mediation is confidential to give you and the other people involved the opportunity to create and consider a wide range of possibilities for agreement without having concerns that what you suggest in mediation may disadvantage you later in another dispute resolution setting. It means you can be confident that showing interest in a possible agreement and considering the implications of that possibility will be understood and interpreted by everyone present simply as showing interest. Confidentiality encourages the scope of mediation to be as broad and as flexible as you and the other participants collectively decide.

I maintain strict confidentiality regarding all of your communications, within the limit of the law. There are some circumstances in which I am legally or ethically obliged to report my concerns to the appropriate authority. For example if I have serious concerns about your well-being or the well-being of anybody in or connected to the mediation I may decide to report my concerns.

The confidentiality of mediation generally extends to all your trusted advisors including personal support people, if any, and to any professional support people including your doctor, your lawyer, your psychologist and your accountant, all of whom also have professional obligations regarding confidentiality. That is, you can discuss any aspect of your mediation with your trusted advisors. Your trusted advisors are then bound by their client-confidentiality obligations.

You and any of the other participants can agree to confidentiality arrangements that suit your circumstances. For example you could all decide to nominate specific people with whom you will discuss the progress of your mediation to include in the ‘Circle of Confidentiality’. I think of these people as your off-site personal and professional trusted advisors.

At your initial separate session I provide more information about confidentiality and very early in your first joint session I facilitate a short discussion so that you and each of the other participants can reach agreement, if you decide to, about who will be included in the ‘Circle of Confidentiality’ for your mediation.

The confidentiality guidelines of your mediation are a tailor-made blend of agreements among those attending, that include each person’s legal rights and obligations. Sometimes there are extra confidentiality requirements of an organisation which has subcontracted the mediation. For example, a franchising mediation is often referred from the Office of the Franchising Mediation Advisor (OFMA). OFMA has policies and procedures relating to confidentiality.

‘Confidentiality’ has specific interpretations in law. The comments above in response to the question ‘ Is it confidential?’ are intended to contribute to raising your awareness of the relevant information. The better informed you are, the more precise your questions and the more wise your decisions. I encourage you to consider taking legal advice on any or all aspects of your mediation, including on ‘confidentiality’, ‘privilege’, ‘without prejudice’ and ‘admissibility’ that may be of concern to you.

What is the role of lawyers in mediation?

If you have engaged a lawyer you will find that they have a distinct role in mediation.  Sometimes your lawyer will attend mediation sessions. If you or any of the participants decide to be accompanied by a lawyer (or any other personal or professional support person) arrangements are made in advance. Well before each mediation session you and each other person involved will know who is attending each session of your mediation.

If they attend a mediation session, the role of a lawyer varies according to whether the mediation is taking place with you and the other people involved all in the main room or with you in one private room and each of the other people involved in their private rooms. During your mediation, it is the lawyer's role to assist the mediation process and to follow your lead regarding the content. In private sessions and in breaks between joint sessions, it is the role of your lawyer to take your instructions and to provide advice that you request. In summary the role of your lawyer is to support you regarding any legal aspects of the mediation, while assisting the mediation process.

That is, your lawyer

• engages with the process, the mediator and other participants
• follows the lead of the participants regarding issues for discussion
• follows the lead of the mediator with regard to the process
• supports the participants and cooperates with the process
• reviews risks of mediating and of not mediating

During your initial separate session and throughout the mediation, you and I (and your lawyer, if present) will discuss whether your lawyer will attend some or all of your mediation joint sessions.

If you engage a lawyer and they do not attend your mediation session I can assist you and the other participants to identify questions for each of your lawyers. This enables you and the other participants to consider your legal advice both between mediation sessions and at your mediation.

You may like to read my post in my Mediation Musings blog on the topic of the roles of lawyers in mediation. The title of the post is The role of lawyers in complementary dispute resolution.

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What if I think I will be uncomfortable at mediation?

I take your comfort very seriously.

Early in your initial separate session, which is a private, individual meeting, I ask you what will assist you to feel as comfortable as possible during mediation. I listen to your ideas and any concerns, then you and I discuss the situation. I ask each participant the same questions so that you each know that I am using the same sort of information to decide on the suitability of mediation and so that I am being even-handed. Your answers remain confidential at all times, within the limit of the law.

I also ask you to tell me about any concerns you have for your safety or for the safety of anyone connected to the mediation. If you have any concerns I conduct a very focused discussion, including a review of whether mediation is suitable in your current circumstances. I work with you to develop a safety plan when necessary.

Most often I design mediation sessions so that you and the other participants attend joint sessions at the same time. Many of the benefits of mediation come from its careful, cooperative, inclusive approach. However, if it is more productive for you and each of the other participants to be in separate rooms or to attend mediation sessions at different times, I design your mediation to accommodate this. Online mediation is another approach I use when it is appropriate for your circumstances.

On the rare occaisions that there is a Restraining Order or an Undertaking, I will check that there is a clause on the document that provides for mediation by an accredited mediator.

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How can we reach agreement when we seem so far apart?

People who engage me to mediate often comment that they think they are irretrievably apart. Most people reach agreement. This is because the terms of engagement of mediation are what is important to each person moving forward, rather than on particular outcomes that each person has wanted in the past. Mediation provides an opportunity to create a tailor-made agreement, rather than to give way to one point of view. The mediation process provides guidelines for interacting cooperatively and listening well. Mediation integrates the practical strengths of each person’s point of view. Approaches other than mediation can be less successful when they involve wrestling with who has the authority and who has the entitlement, often resulting in a power struggle and a clash of rights and the risk of a winner and a loser.

It is natural that you and the other people involved would see things more and more differently as a dispute progresses. For some people the longer conflict lasts, the more likely the terms of engagement are to become an entitlement power struggle and a clash of rights and the more it affects you and the other people involved. This can happen for many reasons including the difficulty of finding an opportunity for each person to present their point of view. It can happen because communication up to this point has been argumentative. It can also happen when one or more of the people involved is feeling emotional and when each person has different information, perhaps leading to different goals.

As well as considering the various points of view, mediation provides you with the opportunity to consider all the issues, including the legal issues, that it is agreed need to be resolved. A measured and respectful exploration of the issues as each person sees them can often contribute to new perspectives and sometimes to understanding.

Above all, mediation provides you with the opportunity to communicate cooperatively so that your communication adds value your decision making, rather than removing value from your decision making. Mediation develops the notion that an agreement that is satisfactory for you and for the other people involved is more likely to be reached through a short period of mediated cooperation than through a long period of litigated argument.

Mediation is the facilitation of a short, structured process of cooperation in the interests of establishing long-term, flexible cooperation.

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Where can I go for more information about mediation?

If you would like more information about mediation you can find a detailed explanation of mediation the Mediation Handbook.

Your Guide to Dispute Resolution is a NADRAC booklet that provides a useful summary.

I welcome your email or phone call to discuss your specific questions and concerns.

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Image Credit: Robert Woods